Service Tax - Arrest - BAIL - No Retrospective application of offence HC
THE question is whether the arrest and bail provisions in Service Tax brought into the Statute with effect from 10.05.2013 will have retrospective effect. That is can a person be arrested for an act committed before 10.05.2013
Yesterday, we carried a decision of the Bombay High Court which held that the offence is a continuing one and bail was rejected. (see )
But a few months back, the Calcutta High Court had held that the provisions did not have retrospective effect and bail was granted. The Calcutta High Court order was mentioned before the Bombay High Court, but the Bombay High Court was not inclined to accept the Calcutta Order.
While pleading for bail in the Calcutta High Court, the petitioner's lawyer contended that:
1. the alleged offence was born not on a solitary date. It took birth on several dates in between the period ranging from 2008 till 2012.
2. if any offence taken place well ahead is taken cognizance of, then retrospective effect cannot be carried so as to infringe the right as guaranteed under Article 20 sub-clause (1) along with Article 21 of the Constitution of India.
The lawyer for the Union of India took the plea that the alleged offence is a continuing one and is alive even today. (the same plea taken by Revenue in Bombay High Court).
The Calcutta High Court observed:-
1. It is correct that the offence is alive till now but it is not less than correct that when it was originated, the offence was bailable.
2. It is also reckoned that the new Act does not have any retrospective effect.
So, the Court released the petitioner on bail on furnishing a bond of Rs.30,000/-, with two sureties of Rs.15,000/- each and subject to the conditions that:
1. The petitioner shall meet the complainant every alternate day till the filing of the application or further order whichever is earlier.
2. The petitioner shall furnish his telephone numbers both land and mobile, with the complainant so that he may be available on call.
3. The petitioner shall not leave the jurisdiction of the State of West Bengal without permission of the Court.
4. The petitioner shall deposit his passport, if any, with the complainant.
5. The petitioner shall deposit a sum of Rs. 10 lakhs with the complainant authority, with ten days from the date of his release.
Later, the Court deleted Conditions (1) and (3) above.
Commenting on the Bombay High Court judgement analysed in yesterday's DDT, a Law Student wrote in, "As a student of law, I think this is in violation of Article 20(1) of the constitution of India and the HC order is wrong."
Now, what is the position? A Service Tax offender arrested in Calcutta will get bail, but an assessee arrested in Mumbai will not. What about those arrested in States other than West Bengal and Maharashtra? The courts there can follow either Calcutta or Bombay High Court decisions - means they may or may not get bail!
Should this issue finally go the Supreme Court?