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TMI Blog2014 (12) TMI 415X X X X Extracts X X X X X X X X Extracts X X X X ..... rely filing of the declaration and disclosure of issuance of summons before 01.03.2013 do not give any vested right to the petitioner that such a declaration must be accepted irrespective of the provisions of the scheme. - Decided against appellant. - SPECIAL CIVIL APPLICATION NO. 12199 of 2014 - - - Dated:- 9-10-2014 - MR. AKIL KURESHI AND MR. VIPUL M PANCHOLI, JJ. MR PARESH M DAVE, ADVOCATE FOR THE PETITIONER MR GAURANG H BHATT, ADVOCATE FOR THE RESPONDENT JUDGEMENT Per: Akil Kureshi: 1. Petitioner has prayed for a direction to the designated authority to allow the petitioner to deposit remaining 50% of the amount of ₹ 7.42 Lacs (rounded off) under the Service Tax Voluntary Compliance Encouragement Scheme, 2013 (hereinafter referred to as, 'the Scheme of 2013'). The petitioner has challenged the order dated 23.06.2014 passed by the Assistant Commissioner of Central Excise rejecting the petitioner's application under the Scheme of 2013. 2. Brief facts are as under: 2.1 The petitioner is a proprietary concern and is engaged in the business of construction and related services which are taxable service under the Finance Act 1994. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eply dated 27.01.2014. The contention of the petitioner was that the summon though issued on 26.02.2013 was served only on 04.03.2013. As per Section 37C of the Central Excise Act 1944, such summon had to be served as provided under Sub section (1) thereof. Till the summon was so served to the petitioner, inquiry or investigation cannot be stated to have been initiated. 5. The Assistant Commissioner of Central Excise Act, however, was not convinced. He therefore, by order dated 23.06.2014, rejected the petitioner's contention and disallowed the petitioner's application for declaration under the Scheme of 2013. In the said order, it is mentioned as under: it is very clear that the inquiry or investigation is started against the assessee by the way of issuance of summons under section 14 of the Central Excise Act, 1944 as made applicable to the Chapter under section 83 on dated 26/28.02.2013 before the cut of date 01.03.2013. Hence, according to proviso of the Section 106(2)(a)(II) of Chapter VI of the Finance Act, 2013 (17 of 2013) VCES application of the M/S Sweta Sales Corporation is disallowed. Accordingly, I pass the following order: Order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice or an order of determination under section 72 or section 73 or section 73A of the Chapter has been issued or made before the 1st day of March, 2013: Provided that any person who has furnished return under section 70 of the Chapter and disclosed his true liability, but has not paid the disclosed amount of service tax or any part thereof, shall not be eligible to make declaration for the period covered by the said return: Provided further that where a notice or an order of determination has been issued to a person in respect of any period on any issue, no declaration shall be made of his tax dues on the same issue for any subsequent period. (2) Where a declaration has been made by a person against whom,- (a) an inquiry or investigation in respect of a service tax not levied or not paid or short levied or short paid has been initiated by way of- (i) search of premises under section 82 of the Chapter; or (ii) issuance of summons under section 14 of the Central Excise Act, 1944 (1 of 1944), as made applicable to the Chapter under section 83 thereof; or (iii) requiring pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion (2) of Section 106 pertains to an inquiry or investigation in respect of a service tax not levied or not paid or short levied or short paid has been initiated. Clause (b) of Sub section (2) of Section 106 pertains to an audit which has been initiated. The other condition of Sub section (2) of Section 106 is that such inquiry, investigation or audit should be pending as on the 1st day of March, 2013. If these two conditions are satisfied, it is in duty of the designated authority to reject such a declaration under the Clause (a). Clause (a) itself provides that an inquiry or investigation could be initiated by any of three modes provided in Sub clauses (i) to (iii). Sub clauses (i) pertains to search of premises under Section 82 of Chapter V of the Finance Act, 1944. Sub clause (ii) pertains to issuance of summons under Section 14 of the Central Excise Act, 1944 and Sub clause (iii) pertains to requiring production of accounts, documents or other evidence. In other words, under Clause (a), an inquiry or investigation shall be stated to have been initiated by way of any of the three modes referred to in three Sub clause thereof. In particular, Sub clause (ii) refers to issuance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay be, is intended; (c) if the decision, order, summons or notice cannot be served in the manner provided in clauses (a) and (b), by affixing a copy thereof on the notice board of the officer or authority who or which passed such decision or order or issued such summons or notice. (2) Every decision or order passed or any summons or notice issued under this Act or the rules made thereunder, shall be deemed to have been served on the date on which the decision, order, summons or notice is tendered or delivered by post [or courier referred to in subsection (1)] or a copy thereof is affixed in the manner provided in subsection (1).] 17. Sub section (1) of Section 37C of the Central Excise Act 1944, provides for different modes of service of decision, order, summons or notice issued under the Central Excise Act, 1944. It does not have any bearing on the requirement of initiation of an inquiry or the investigation. Later provision of Sub section (2) of Section 37C provides for a fiction where the decisions, summons or notices made under the rules shall be deemed to have been served. The said provision would not have any application on the interpretation of Sub sect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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