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TMI Blog2015 (11) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... made payments, which they were otherwise liable to pay. This interpretation of ours appears to be inevitable on the clear language of Section 106 read as a whole and in part. In the show-cause notice issued, it is stated that, though the amount was deposited on 31.03.2013, it was when the investigation was pending. A reply was given by the assessee. The reply as such is not before us, but the learned counsel for the appellant would submit that the reply has been faithfully reproduced in the impugned orders. In the impugned orders, there is no reference to the Circular as such. In other words, there is no case set up by the assessee before the authority that the notices issued under Section 14 of the Central Excise Act were of a roving nature. Besides that, as we have already noticed, the notices do specifically refer to the transport service from out of the many services, which the appellant do perform, and the documents are sought with reference to the same. Having regard to the same, we would think that it would be a futile attempt to again remit the matter back to the authority for a de novo consideration. There was no interdiction by this Court against the authority cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... awaited from you, which is causing delay in completion of investigation. It is reiterated that it is gathered that your organization is incurring significant amount under the head freight/transportation charges for transportation of wood, minerals etc. In view of the statutory provisions of Goods Transport Agency (copy enclosed), it appears that service tax is leviable on freight charges paid by your organization. In order to further enquire into the matter, it is requested that the following information may be provided to this office at the earliest- 1. The amount of freight/transportation charges incurred by your organization during 2006-07 to 2010-11; 2. Balance sheets (with all schedules and annexure) for the years 2006-07 to 2010-11; 3. Whether your organization is registered with Service Tax Central Excise department or not. If yes, details of service tax paid under the category transport of goods by road service . Kindly note that the above information is being sought under the provisions of Section 14 of the Central Excise Act, 1944 as made applicable to Service Tax matter by virtue of Section 83 of the Finance Act, 1994. An early reply is highly sol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, initially formed under the Uttar Pradesh Van Nigam Act, 1974 and subsequently transferred to the State of Uttarakhand by Uttar Pradesh Van Nigam (Uttaranchal Amendment) Order, 2011 and latter name was changed to Uttarakhand Van Vikas Nigam by Uttarakhand Van Vikas Nigam (Amendment) Act, 2011 is a unit of the Uttarakhand Government. The activities assigned to Corporation are mainly scientific extraction and sale of forest produce and other natural resources within the State of Uttarakhand as per the directions of the Government of Uttarakhand. In the course of performance of its activities the Units of the Corporation situated at various locations avail services of various transporters for transporting forest produce and other natural resources from its Units to its depots. We, therefore, now wish to deposit service tax under the Service Tax Voluntary Encouragement Scheme, 2013 with respect to transport facilities availed by Individual Units since 1st day of October, 2007 till December, 2012. Service Tax dues of the respective units have been attached to this application. Copies of service tax registration certificates of the respective Units are duly attached ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advance Service Tax under the said Service Tax Voluntary Encouragement Scheme, 2013. As the said 19 service producers fall within your jurisdiction (either Meerut-I or Meerut-II Commissionerate), further investigation/action in the matter may please be conducted/taken by the concerned Commissionerate. After completion of the proceedings, the outcome may please be intimated to this Directorate. Yours faithfully, (Samanjasa Das) Additional Director General Encl- as above 8. In the meantime, the Scheme came into force. The Scheme is a statutory scheme. The Scheme, which is brought under Chapter VI of the Finance Act, 2013, is captioned as Service Tax Voluntary Compliance Encouragement Scheme, 2013. Under Section 105, declarant is defined as a person, who makes a declaration under sub-section (1) of Section 107. Designated Authority is defined to mean an officer not below the rank of Assistant Commissioner of Central Excise as notified by the Commissioner of Central Excise for the purposes of the Scheme. Tax dues is defined to mean the service tax due or payable under the Chapter or any other amount due or payable under Section 73A thereof, for the period begi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such payment to the designated authority. (4) The tax dues or part thereof remaining to be paid after the payment made under sub-section (3) shall be paid by the declarant on or before the 30th day of June, 2014: Provided that where the declarant fails to pay said tax dues or part thereof on or before the said date, he shall pay the same on or before the 31st day of December, 2014 along with interest thereon, at such rate as is fixed under section 75 or, as the case may be, section 73B of the Chapter for the period of delay starting from the 1st day of July, 2014. (5) Notwithstanding anything contained in sub-section (3) and sub-section (4), any service tax which becomes due or payable by the declarant for the month of January, 2013 and subsequent months shall be paid by him in accordance with the provisions of the Chapter and accordingly, interest for delay in payment thereof, shall also be payable under the Chapter. (6) The declarant shall furnish to the designated authority details of payment made from time to time under this Scheme along with a copy of acknowledgment issued to him under sub-section (2). (7) On furnishing the details of full payment of declared ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel for the appellant that the appellant must be treated at par with other honest tax payers. He points out that, under the Scheme, a person needs to only deposit 50 per cent immediately and he gets time till 30th June, 2014 to pay the balance amount and, still further, if the balance 50 per cent is not paid by 30th June, 2014, he can pay the balance amount with interest till 31st December, 2014 instead. It is submitted that the Court may note the conduct of the appellant in depositing the amount even prior to the Scheme being formulated as such, i.e. on 31.03.2013. He would further submit that the mere fact that he has deposited the amount on 31.03.2013 could not be sufficient to deprive him of the benefit of the Scheme. In this regard, he drew our attention to the definition of the word dues . According to him, it would clearly show that, insofar as the amount was not paid as on 01.03.2013 and it is admittedly paid only thereafter, i.e. on 31.03.2013; appellant cannot be deprived of the benefit of the Scheme. In this regard, he drew our attention to the Bench decision of the Gujarat High Court in the case of Sadguru Construction Co. 1 vs. Union of India 2, report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requiring production of accounts, documents or other evidence under the chapter or the rules made thereunder, and such inquiry or investigation is pending as on the 1 st day of March, 2013. The relevant provisions, beside section 14 of the Central Excise Act as made applicable to service tax vide section 83 of the Finance Act, 1994, under which accounts, documents or other evidences can be requisitioned by the Central Excise Officer for the purposes of inquiry or investigation, are as follows,- (i) Section 72 of the act envisages requisition of documents and evidences by the Central Excise Officer if any person liable to pay service tax fails to furnish the return or having made a return fails to assess the tax in accordance with the provision of the Chapter or rules made thereunder. (ii) Rule 5A of the Service Tax Rules, 1994 prescribes for requisition of specified documents by an officer authorized by the Commissioner for the purposes specified therein. The provision of section 106(2)(a)(iii) shall be attracted only in such cases where accounts, documents or other evidences are requisitioned by the authorised officer from the declarant under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority of section 14 of the Central Excise Act in a routine manner. The designated authority /Commissioner concerned may take a view on merit, taking into account the facts and circumstances of each case as to whether the inquiry is of roving nature or whether the provisions of section 106(2) are attracted in such cases. 14. Learned counsel for the appellant would submit with reference to the first Circular, which he referred to, that he has already taken the registration. Then, in regard to the Column No. 4, he would submit that, since there is no notice issued or proceedings taken under Sections 72, 73 and 73A, it cannot take him out of the purview of the Scheme. Next, he would contend with reference to Circular dated 08.08.2013 that it would not be sufficient as is clear from the clarification issued that there is a notice issued under Section 14 of the Central Excise Act. Lastly, there is reference also to Circular dated 25.11.2013, which, in a sense, is to the effect that, even if notice is captioned under Section 14 of the Central Excise Act, if the Department is conducting inquiries of roving nature, the matter has to be decided on meri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Act, that too by the Deputy Director of Central Excise Intelligence, would be sufficient to take the case of the appellant outside the scope of the Scheme? We are of the view that there is merit in the contention of the learned counsel for the respondents that the Scheme expressly bars or rather renders ineligible persons against whom notices have been issued or orders have been passed under Sections 72, 73 and 73A of the Finance Act, 1994. This is a matter, which is beyond doubt. In respect of Sections 72, 73 and 73A, be it a notice or a case where a decision is taken there under, that will suffice to debar the person from invoking the benefit of the Scheme. It is, after providing for such a contingency, that the Legislature has further provided that, when there is an inquiry or investigation which is pending and which, for the purpose of our case, is based on summons issued under Section 14 of the Central Excise Act; the competent authority, as defined, is to look into the matter and it shall reject such a declaration for reasons to be recorded. Therefore, even though a declaration is made by a person, if any inquiry or investigation in respect of service tax not levied or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out of ignorance which is partly contributed to by the revenue in not taking any sort of action against them, not made payments, which they were otherwise liable to pay. This interpretation of ours appears to be inevitable on the clear language of Section 106 read as a whole and in part. 18. Now, we will pass on to the consideration of the case of the appellant based on the Circulars. Undoubtedly, as far as the first Circular is concerned, at Column No. 1, which we have extracted above, appellant has taken out the registration. The declarant may get the benefit of immunity for not having taken registration earlier or not filed the return or for delay in filing the return. But, this is applicable provided the other disqualification present in Section 106(2), which is relevant for our purpose, is not applicable. As far as Column No. 3 is concerned, we do not think that anything turns on the same as far as facts of these cases are concerned. Coming to Column No. 4, namely, the query appears to have been whether a communication from the department seeking general information from the declarant would lead to the invoking of Section 106(2)(a)(iii). The clarification, which is given, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6(2) are attracted. The argument of the learned counsel for the appellant in regard to this clarification appears, at the first blush, to have some merit. But the stand of the respondents is that, having regard to the nature of the correspondence under Section 14 of the Central Excise Act, which we have already extracted, it cannot be considered to be of a roving nature. He would submit that the notice under Section 14 of the Central Excise Act was specifically directed to transport service. In other words, the authorities had zeroed in on the specific service rendered for which the appellant became liable as a recipient. It is with reference to the same that the documents were also called for. We notice that, in the show-cause notice issued, it is stated that, though the amount was deposited on 31.03.2013, it was when the investigation was pending. A reply was given by the assessee. The reply as such is not before us, but the learned counsel for the appellant would submit that the reply has been faithfully reproduced in the impugned orders. In the impugned orders, there is no reference to the Circular as such. In other words, there is no case set up by the assessee before the auth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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