9911796707
TMI Blog2014 (12) TMI 415X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.2 The petitioner had executed work order for laying down, installation, construction, testing and commissioning of Polyethylene Gas Pipeline's network between April 2008 to September 2012. According to the petitioner, service tax liability for such execution of work was also discharged. The Directorate General of Central Excise Intelligence, Ahmedabad Zonal Unit, however, initiated inquiry against the petitioner with respect to such liability by issuing summons dated 26.02.2013 under Section 14 of the Central Excise Act, 1944, which was served on the petitioner on 04.03.2013. Another summon was also issued on 28.2.2013 served to the petitioner on 05.03.2013. In response to such summons, the petitioner appeared before the authority. Statements were recorded, various documents were collected and Demand cum Show Cause Notice was issued to the petitioner on 21.10.2013. 2.3 In the meantime, w.e.f. 10.05.2013, the said scheme was implemented under the Finance Act, 2013. Under the said scheme, subject to certain conditions, a person could make a declaration of his tax dues and upon payment of such tax dues in two installments within the prescribed time the declarant would get immun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereby reject the VCES application of the M/S Sweta Sales Corporation dated 24.12.2013." 6. It is this order which the petitioner has challenged in this petition and prayed for consequential relief permitting the petitioner to deposit remaining 50% of the tax dues as per the declaration and for acceptance of such declaration. 7. Learned counsel Mr. Paresh Dave for the petitioner strenuously urged before us that under Sub section (2) of Section 106 of the Finance Act 2013, requirement is initiation of an inquiry or investigation in respect of unpaid service tax. Initiation of inquiry can be completed only upon service of summon, under Section 14 of the Central Excise Act 1944, not by merely issuance of summons. He placed reliance on Section 37C of the Central Excise Act, 1944, to contend that such summon had to be served on the noticee as per the procedure prescribed in the said provision. He contended that unless such procedure is completed, service of summon would remain incomplete. In turn, there would be no initiation of inquiry as envisaged under Sub section (2) of Section 106. 8. On the other hand, learned counsel Mr. Gaurang Bhatt for the respondent opposed the position o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sp; (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 production of accounts, documents or other evidence under the Chapter or the rules made thereunder; or (b) an audit has been initiated, and such inquiry, investigation or audit is pending as on the 1st day of March, 2013 then, the designated authority shall, by an order, and for reasons to be recorded in writing, reject such declaration." 11. Section 107 of the Finance Act 2013 pertains to procedure for making declaration and payment of tax dues. As per Sub section (1) of Section 107, any person may make a declaration to the designated authority on or before 31st December 2013 in the prescribed format. Under Sub section (3) of Section 107, declarant shall have to be made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arch 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 of summons under Section 14 of the Central Excise Act, 1944. Thus, if summons under Section 14 of the Central Excise Act, 1944 has been issued; for the purpose of Clause (a) inquiry or investigation in respect to the service tax not paid shall be stated to have been initiated. What is therefore sufficient for the application of Sub section (2) of Section 106 is issuance of summons under Section 14 of the Central Excise Act, 1944. The other condition required to be verified is whether such an inquiry or the investigation or an audit was pending as on 01.03.2013. Sub clause (ii) thus refers to issuance of summons and not to service of summons on the petitioner. In other words, therefore, if summon unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 section (2) of Section 106 of the Finance Act. 18. Equally, merely because the petitioner filed a declaration and summons along with such declaration would not compel the department to accept the same de hors to the provisions of the scheme. Merely 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. 19. In the result, this petition is dismissed. Notice is discharged. 20. Learned counsel for the petitioner at this stage req ..... X X X X Extracts X X X X X X X X Extracts X X X X
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