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2019 (2) TMI 1312 - AT - Service TaxRejection of VCES Declaration - appellant had indicated that they have paid their dues on 2.5.2013, which is prior to the coming into operation of the VCES scheme - rejection of declaration on the ground that dues were paid prior to the insertion of VCES Scheme - Held that - Although the impugned order has been passed after the passing of the order of this Tribunal in ANISHA DEEPAK TANK VERSUS COMMISSIONER OF CENTRAL EXCISE NASHIK 2018 (5) TMI 1210 - CESTAT MUMBAI , dated 29.12.2017, but still the Commissioner rejected the aforesaid submission of the Appellant on the ground that the aforesaid appeal i.e. Appeal No. ST/86978/2014 is not maintainable before the tribunal as per the VCES scheme and therefore he decided the appeal on merits and confirmed the demand with interest and penalty through the impugned order. While going through the order dated 29.12.2017 of the Tribunal in appellant s case concerning VCES scheme, I find that the ground of non-maintainability of Appeal before this Tribunal, which has been given by the Commissioner while rejecting the submission of the appellant in the present case, has not been argued anywhere by the revenue in that Appeal. Once the issue has been decided by the Tribunal in favour of appellant it can t be reopened by any of the authorities below. The Commissioner has erred in recording the finding on the admissibility of the declaration filed by the appellant under the VCES Scheme. Nothing has been produced on record nor it is the case of revenue that the aforesaid order dated 29.12.2017 has been challenged by the revenue in appeal. Appeal allowed - decided in favor of appellant.
Issues Involved:
1. Rejection of declaration under the voluntary compliance encouragement scheme (VCES) due to payment made before the scheme's implementation. 2. Authority of the Commissioner to comment on the jurisdiction of the tribunal after a favorable decision. Issue 1: Rejection of VCES Declaration The appellant, engaged in providing services under "renting of immovable property," filed a VCES declaration indicating payment of dues on 2.5.2013 before the VCES scheme's implementation on 10.5.2013. Both lower authorities rejected the declaration based on Board's clarification No. 174/9/2013-ST. The Tribunal referred to the decision of the Hon'ble High Court of Gujarat in a similar case and held that the declaration under VCES Scheme needs to be accepted. The High Court emphasized that the declaration could be made for tax dues not paid before 1-3-2013, irrespective of payment date before the scheme's framing. The CBEC clarification on the issue was also considered and set aside by the High Court. Following this judgment, the Tribunal set aside the impugned orders and allowed the appeals. Issue 2: Authority to Comment on Tribunal's Jurisdiction A show cause-cum-demand notice was issued to the appellant demanding service tax payment of ?5,10,920/- with interest and penalty, including the amount deposited under VCES scheme before its implementation. The Commissioner rejected the appellant's submission based on the pending appeal before the Tribunal, which was not challenged by the revenue. The Tribunal held that once an issue is decided in favor of the appellant, it cannot be reopened by lower authorities. The Commissioner erred in commenting on the tribunal's jurisdiction without any challenge to the tribunal's order. As the rejection of the declaration under VCES Scheme was the foundation of the dispute, and since the tribunal upheld the declaration, the show cause notice could not stand. Consequently, the impugned order was set aside, and the appeal was allowed with any consequential relief. This detailed analysis of the judgment highlights the key issues of rejection of VCES declaration and the authority of the Commissioner regarding the tribunal's jurisdiction, providing a comprehensive understanding of the legal implications and decisions made in the case.
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