1. This order shall govern the disposal of I.A. Nos. 4 and 5 for conditional bail/temporary bail and for undertaking for grant of temporary bail, respectively.

2. By this application under Section, 439 of the Code of Criminal Procedure, 1973 (for short the Code), the applicant who has been arrested in connection with the offence punishable under Section 89 read with Section 90 of the Finance Act, 1994, has prayed for his release on bail.

3. The applicant has also filed I.A. No. 4 for conditional/temporary bail with I.A. No. 5 for undertaking for grant of temporary bail.

4. As per the bail application and submission of counsel for the applicant, this is the first bail application filed on behalf of the applicant for grant of regular bail. No other application of this nature is pending before this Court or before the Court below. The application is duly supported by the affidavit of Sujit Surendran Nair, younger brother of the applicant. His bail application has been dismissed by the Sessions Judge, Durg vide order dated 18.10.2013 passed in Bail Application No. 1410 of 2013.

5. As per the arrest memo, the applicant has collected service tax amounting to Rs. 2.17 crores for the State and has not deposited the same to the State.

6. Initially, bail application was filed by Mr. Kishore Bhaduri, Additional Advocate General/Public Prosecutor in which non-applicant No.2 - State has not been impleaded as party. Competency of Mr. Kishore Bhaduri, Additional Advocate General/Public Prosecutor to represent the applicant was objected by the Standing Counsel for Central Excise and Customs - Mr. Maneesh Sharma, Advocate. During the course of arguments, on 31.10.2013, Mr. Kishore Bhaduri, Additional Advocate General/Public Prosecutor submitted that he is competent to represent the applicant, the offence is not triable by Magistrate, but triable by the Commissioner, Central Excise and the appeal does not lie to the Sessions Court, but to the officers of Central Excise. In the light of aforesaid objection and trial jurisdiction, two questions arose [or consideration relating to competency of hearing viz. (1) whether Mr. Kishore Bhaduri, Additional AG/PP is competent to represent the applicant against the State and (2) whether criminal courts are not having jurisdiction to try the offence punishable under Section 89 read with Section 90 of the Finance Act, 1994. Thereafter, Mr. Kishore Bhaduri, Additional AG/PP filed application for withdrawal of power vide I.A. No.1. After obtaining NOC from the associates of Mr. Kishore Bhaduri, Senior Advocate Dr. N.K. Shukla appeared to assist the Court and to represent the applicant. On 11.11.2013, Senior Advocate Dr. N.K. Shukla fairly submitted that the offence involved is triable by criminal courts and not by any statutory authority, offence being cognizable is against the State and the State has entrusted the administration of criminal justice to the Office of the Advocate General, therefore, Mr. Kishore Bhaduri, Additional AG/PP could not represent the accused/ applicant against the State.

7. Aforesaid offence has been defined and penalty has been provided under Section 89 of the Finance Act, 1994 which reads thus––

"89. Offences and penalties – (1) Whoever commits any of the following offences, namely:-

(a) Knowingly evades the payment of service tax under this chapter.

(b) Avails and utilizes credit of taxes or duty without actual receipt of taxable service or excisable goods either fully or partially in violation of the rules made under the provisions of this Chapter.

(c) Maintains false books of account or fails to supply any information which he is required to supply under this Chapter or the rules made thereunder or (unless with a reasonable belief, the burden of proving which shall be upon him, that the information supplied by him is true) supplies false information.

(d) Collects any amount as service tax but fails to pay the amount so collected to the credit of the Central Government beyond a period