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2020 (12) TMI 316 - HC - Central ExciseRejection of declaration filed under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - SVLDRS - application of the petitioner for taking benefit of the aforesaid scheme has been arbitrarily rejected by impugned communication dated 26.02.2020 on the ground that as per Section 125 (1)(h) of the Finance (No.2) Act, 2019 the product i.e. SKO is set forth in the 4th Schedule of Central Excise Tariff Act, 1944 - vires of of section 174 of Central Goods and Service Tax 2017 and also violative of Entry No.84 of List I (Union List) of the Seventh Schedule to Constitution of India - HELD THAT - Perusal of the Fourth Schedule to the Central Excise Act, 1944 and the provisions of Section 2(d) read with Section 2(f)(ii) leaves no manner of doubt that Superior Kerosene Oil is an excisable goods under the Central Excise Act, 1944, even if no rate of duty has been notified by the Central Government under the Act, 1944. Section 125(1)(h) of the Finance (No.2) Act, 2019 (Sabka Vishwas Scheme) specifically excludes applicability of the Sabka Vishwas Scheme with respect to excisable goods set forth in the Fourth Schedule to the Central Excise Act 1944 - Since the 'SKO is an excisable goods set forth in the Fourth Schedule to the Central Excise Act, 1944, therefore, the petitioner was not eligible to make a declaration under the Scheme in view of Section 125 of the Finance (No.2) Act 2019. Undisputedly, Superior Kerosene Oil is mentioned in the Fourth Schedule although no rate of duty has been provided. If rate of duty has not been provided it shall merely mean that no duty is leviable in the absence of rate of duty. It does not mean that such goods are not excisable. All the goods mentioned in Fourth Schedule to the Act, 1944 shall continue to be excisable goods unless the goods is removed from the Schedule by an amendment. Section 174 of the CGST Act has not repealed the Central Excise Act, 1944 as respect to the goods included in entry 84 of the Union List of the Seventh Schedule to the Constitution. The Central Excise Act, 1944 as amended by Act 18 of 2017 has been enacted with respect to the goods included in entry 84 of the Union List of the Seventh Schedule to the Constitution which includes S.K.O. Deletion of SKO from the Fourth Schedule of Central Excise Tariff Act, 1944 - HELD THAT - There is no such Act. The relief sought is without substance. Apart from this, inclusion of SKO in the Fourth Schedule of the Act, 1944 is not violative of Section 174 of the CGST Act, 2017. The petitioner/declarant could avail benefit of the Sabka Vishwas Scheme only in accordance with the provisions of the Scheme. Section 125(1)(h) of the Act 2019/ Sabka Vishwas Scheme has specifically excluded persons seeking to make declarations with respect to excisable goods set forth in the Fourth Schedule to the Central Excise Act, 1944. Undisputedly, S.K.O. is an excisable goods set forth in the Fourth Schedule to the Act, 1944. The petitioner was not eligible to make a declaration under the Sabka Vishwas Scheme with respect to S.K.O. - non acceptance of the declaration of the petitioner by the respondents does not suffer from any manifest error of law. Petition dismissed.
Issues Involved:
1. Validity of the SVLDRS-3 communication dated 26.02.2020. 2. Eligibility of the petitioner to avail benefits under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019. 3. Inclusion of Superior Kerosene Oil (SKO) in the Fourth Schedule of the Central Excise Tariff Act, 1944. 4. Alleged violation of Section 174 of the Central Goods and Service Tax (CGST) Act, 2017 and Entry No. 84 of List I (Union List) of the Seventh Schedule to the Constitution of India. Detailed Analysis: 1. Validity of the SVLDRS-3 communication dated 26.02.2020: The petitioner challenged the SVLDRS-3 communication dated 26.02.2020, which rejected their application under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 (hereinafter referred to as "Sabka Vishwas Scheme"). The designated committee rejected the application on the grounds that SKO is listed in the Fourth Schedule of the Central Excise Tariff Act, 1944, making the petitioner ineligible for the scheme as per Section 125(1)(h) of the Finance (No.2) Act, 2019. 2. Eligibility of the petitioner to avail benefits under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019: The petitioner argued that SKO should not be considered excisable goods under the Fourth Schedule of the Central Excise Tariff Act, 1944, post the amendment of Entry 84 of List I of the Seventh Schedule to the Constitution of India. The court, however, found that SKO remains an excisable good under the Central Excise Act, 1944, even if no duty rate is specified. Section 125(1)(h) of the Finance (No.2) Act, 2019, explicitly excludes persons seeking to make declarations with respect to excisable goods listed in the Fourth Schedule. Therefore, the petitioner was ineligible to make a declaration under the Sabka Vishwas Scheme. 3. Inclusion of Superior Kerosene Oil (SKO) in the Fourth Schedule of the Central Excise Tariff Act, 1944: The petitioner contended that the inclusion of SKO in the Fourth Schedule is impermissible post the constitutional amendment, which limits the excisable goods to petroleum crude, high-speed diesel, motor spirit, natural gas, aviation turbine fuel, and tobacco products. The court, however, noted that SKO remains listed in the Fourth Schedule as excisable goods under the Central Excise Act, 1944, even if no duty is currently levied. The inclusion of SKO in the Fourth Schedule does not violate the amended Entry 84 of List I of the Seventh Schedule to the Constitution. 4. Alleged violation of Section 174 of the Central Goods and Service Tax (CGST) Act, 2017 and Entry No. 84 of List I (Union List) of the Seventh Schedule to the Constitution of India: The petitioner argued that the continued listing of SKO in the Fourth Schedule violates Section 174 of the CGST Act, 2017, which repealed the Central Excise Act except for goods included in the amended Entry 84 of List I. The court found no merit in this argument, stating that the Central Excise Act, 1944, as amended by Act 18 of 2017, continues to apply to goods listed in Entry 84, which includes SKO. Therefore, the inclusion of SKO in the Fourth Schedule is not violative of Section 174 of the CGST Act, 2017. Conclusion: The court concluded that the petitioner was not eligible to make a declaration under the Sabka Vishwas Scheme concerning SKO, as it remains an excisable good listed in the Fourth Schedule of the Central Excise Tariff Act, 1944. The writ petition was dismissed, and the SVLDRS-3 communication dated 26.02.2020 was upheld as valid.
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