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TMI Blog2016 (5) TMI 229X X X X Extracts X X X X X X X X Extracts X X X X ..... been stated that if adjudicated the amount would be less than ₹ 50 lakhs. So the stand of the appellant is inconsistent. Moreover, the orders of rejection have gone unchallenged. Therefore, the learned Judge was justified in dismissing the writ petition. The respondents are entitled to cost, which is assessed at ₹ 10,200/-. - Decided against the appellant - MAT 1806 of 2015 & CAN 11505 of 2015 - - - Dated:- 22-12-2015 - SOUMITRA PAL AND MIR DARA SHEKO, JJ For the Petitioner : Mr. Bikash Ranjan Bhattacharya, Senior Advocate, Mr. Soumya Majumder, Mr. Shib Sankar Roy And Mr. Sukalpa Sen For the Respondent : Mr. S.B. Saraf And Mr. K.K. Mait ORDER SOUMITRA PAL, J:- This appeal has been preferred against the judgment dated 26th November, 2015 passed in WP 27945(W) of 2015 (Tirthankar Ghosh vs- The Superintendent (SIV), Service Tax II, Kolkata Ors.) by the writ petitioner whereby the writ petition was dismissed by holding as under: Let the affidavit of service filed today be kept on record. The subject matter of challenge in the instant writ proceeding a remand application dated 8th September, 2015 arises due to evasion of payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not a person worthy to be considered for being granted such discretionary reliefs, in the absence of palpable demonstration of bona fide conduct before seeking such discretionary reliefs. For reasons stated above, the writ petition is liable to be summarily dismissed and is accordingly dismissed. The said writ petition was filed by the appellant, inter alia, praying for the following reliefs: a) A writ or writs, order or orders, direction or directions in the nature of Mandamus commanding the respondents to cancel and/or withdraw and/or rescind the said remand application dated 8th September, 2015; b) A writ or writs, order or orders, direction or directions in the nature of Mandamus commanding the respondents to determine the valid and legitimate dues to Central Government on account of Service Tax from all the three business entities separately in accordance with law before initiating any recovery proceedings or before taking any further coercive action against the petitioner; c) A writ or writs, order or orders, direction or directions in the nature of Mandamus commanding the respondents to make the final adjudication in terms of the Hon ble High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l is, thus, disposed of. The facts of the writ petition are that the petitioner carrying on three businesses, as mentioned in the writ petition and having service tax registration number, had opted for the benefits under the Service Tax Voluntary Compliance Encouragement Scheme, 2013, (for short VCES )which came into effect from 10th May, 2013. The said VCES was introduced by the Central Government to encourage disclosure of service tax dues and compliance of service tax who had not paid service tax dues for the period from 1st October, 2007 to 31st December, 2012. The VCES envisaged waiver of interest, penalty and other consequences on payment of tax dues relating to the period under VCES. It appears from Section 107(1) of the VCES that the person may make a declaration for payment of dues before the designated authority on or before 31st December, 2013 in such form and in such manner as may be prescribed. Section 107(2) of the VCES postulates that the authority shall acknowledge the declaration in such form and in such manner as may be prescribed. Section 107(3) of the VCES lays down that the declarant shall, on or before the 31st December, 2013 pay not less than fifty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... September, 2015 under Section 91(1) of the Finance Act, 1994, as amended for the offence punishable under Clause (ii) of sub-section 1 of section 89 read with Section 9(a) of the Central Excise Act, 1944, as made applicable to service tax vide Section 83 of the Finance Act, 1994. Subsequently the appellant filed an application for bail under Section 439 of the Code of Criminal Procedure and an order was passed on 3rd November, 2015. Thereafter, he had affirmed the writ petition on 23rd November, 2015 which was dismissed, as noted. Mr. Bikash Ranjan Bhattacharya, learned senior advocate appearing on behalf of the appellant submits that as the applications with regard to M/s. Park Indicom Private Ltd. and M/s. Park International were rejected and as payments have been made and outstanding dues as claimed by the service tax authorities are in dispute and as the dues, according to his client, are much less and as the appellant is entitled to have the matter adjudicated under Section 73 of the Act, appropriate order may be passed directing the authorities for adjudication of the claim. Since under the VCES the appellant was to pay 50% of the dues, which has not been paid and two a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 89(1)(d) and not under Section 89(1)(a) as contended on behalf of the appellant. Since the appellant had collected the money as service tax and failed to pay the amount, it is punishable under Section 89(1)(d)(ii) of the Act, which is a cognizable offence under Section 90 of the Act. Mr. Saraf has relied on the following judgments: a) Noor Ali Babul Thanewala vs- K.M.M. Shetty Ors.: (1990) 1 Supreme Court Cases 259; b) Prestige Lights Ltd. vs- State Bank of India: (2007) 8 Supreme Court Cases 449; c) K.D. Sharma vs- Steel Authority of India Limited: (2008) 12 Supreme Court Cases 481 and d) Dalip Singh vs- State of Uttar Pradesh Ors.: (2010) 2 Supreme Court Cases 114. Learned advocates for the parties have relied on the unreported judgment delivered on 7th August, 2015 in MAT 1122 of 2014 with CAN 7087 of 2014 (Commissioner of Service Tax Commissionerate vs- Parijat Vyappar Private Ltd. Ors.). The issues which require consideration are (i) whether the appellant had gone back from the undertaking and (ii) whether the remand application dated 8th September, 2015 filed on behalf of the service tax authorities is just and proper. It is evident from the records ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... collected service tax. Once he had collected the tax it was his duty to pay it to the credit of Central Government within six months from the date of collection. Failure to deposit is a cognizable offence and is hit by Section 89(1) of the Act and is liable to be punished under Section 89(1)(ii) of the Act. The judgments relied on behalf of the appellant in the case of Lee Young Sang Anr. (supra) and ICICI Bank Ltd. (supra) are distinguishable on facts as the former does not deal with service tax and the latter does not relate to an application filed under VCES. Moreover, the said judgments do not deal with the case where a person has gone back from an undertaking given in Court. There is also another aspect which deserves mention. Though the appellant in page 50 of the writ petition had admitted that a sum of ₹ 1,81,80,941/- is due and payable, however in paragraph 4 of the writ petition it has been stated that if adjudicated the amount would be less than ₹ 50 lakhs. So the stand of the appellant is inconsistent. Moreover, the orders of rejection dated 7th May, 2014 and 16th May, 2014 have gone unchallenged. Therefore, for the reasons as aforesaid, the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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