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TMI Blog2017 (2) TMI 1074X X X X Extracts X X X X X X X X Extracts X X X X ..... The petitioner till 31-5-2007 was registered with the Service Tax Department under the category of Commercial and Industrial Construction Services. 2. That the Central Government has introduced Service Tax Voluntary Compliance Encouragement Scheme, 2013 (for short VCES ) w.e.f. 10-5-2013 by way of amendments in the Finance Act, 1994. Under the said Scheme any person may declare his tax dues in respect of which no notice or an order for determination under Section 72, 73 or 73A of [Finance Act, 1994] has been issued or made before the 1st day of March, 2013. The procedure has been prescribed for availing the Scheme. With the intention to avail the benefit under the VCES petitioner submitted a declaration in Form VCES-1 declaring the tax dues amounting to ₹ 7,19,490/- on 21-6-2013 for the period April, 2010 to December, 2012 under the category of Works Contract . Along with the declaration petitioner has deposited 50% of the tax dues i.e. ₹ 4,56,973/- vide Challan dated 26-6-2013. Petitioner was also issued acknowledgement under the provisions of sub-section (2) of Section 107 of the Finance Act, 1994 under Form VCES-2 on 1-7-2013. Thereafter petitioner further depos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e matter of Frankfinn Aviation Services P. Ltd. v. Asstt. Commr., Designated Authority, VCES, Service Tax reported in 2014 (34) S.T.R. 165 (Del.) in which in similar facts and circumstances the Court has held that Department cannot reject the declaration under Section 106(1) of the Finance Act, 2013. 8. Per contra Shri Prasanna Prasad, learned counsel for the Department submitted that by virtue of Section 106(2) an enquiry/investigation/audit is pending against the petitioner as on 1-3-2013, therefore, the designated authority has rightly rejected the said declaration. He has further submitted that the petitioner is having an alternative efficacious remedy by way of appeal to challenge the impugned order dated 16-10-2014 and the present writ petition under Article 226 of the Constitution of India is not maintainable and the same is liable to be dismissed. 9. That it is not disputed that the petitioner was registered with the Service Tax Department till 31-5-2007. It is also not disputed that a show cause notice was issued to the petitioner for the period from 1-1-2007 to 31-3-2010 under the construction service and for the period from 1-6-2007 to 31-3-2010 under the Works Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice 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, 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. 97. (1) Subject to the provisions of this Scheme, a person may make a declaration to the designated authority on or before the 31st day of December, 2013 in such form and in such manner as may be prescribed. (2) The designated authority shall acknowledge the declaration in such form and in such manner as may be prescribed. (3) The declarant shall, on or before the 31st day of December, 2013, pay not less than fifty per cent. of the tax dues so declared under sub-section (1) and submit proof of such payment to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n shall be recovered under the provisions of Section 87 of the Chapter. 101. (1) Where the Commissioner of Central Excise has reasons to believe that the declaration made by a declarant under this Scheme was substantially false, he may, for reasons to be recorded in writing, serve notice on the declarant in respect of such declaration requiring him to show cause why he should not pay the tax dues not paid or short-paid. (2) No action shall be taken under sub-section (1) after the expiry of one year from the date of declaration. (3) The show cause notice issued under sub-section (1) shall be deemed to have been issued under Section 73, or as the case may be, under Section 73A of the Chapter and the provisions of the Chapter shall accordingly apply. * * * * * 106. (1) Any person may declare his tax dues in respect of which no 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 Servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able 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 acknowledgement issued to him under sub-section (2). (7) On furnishing the details of full payment of declared tax dues and the interest, if any, payable under the proviso to sub-section (4), the designated authority shall issue an acknowledgement of discharge of such dues to the declarant in such form and in such manner as may be prescribed. 108. Immunity from penalty, interest and other proceeding. - (1) Notwithstanding anything contained in any provision of the Chapter, the declarant, upon payment of the tax dues declared by him under sub-section (1) of Section 107 and the interest payable under the proviso to sub-section (4) thereof, shall get immunity from penalty, interest or any other proceeding under the Chapter. (2) Subject to the provision of Section 111, a declaration made under sub ..... 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