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TMI Blog2019 (2) TMI 1312X X X X Extracts X X X X X X X X Extracts X X X X ..... re the tribunal as per the VCES scheme and therefore he decided the appeal on merits and confirmed the demand with interest and penalty through the impugned order. While going through the order dated 29.12.2017 of the Tribunal in appellant’s case concerning VCES scheme, I find that the ground of non-maintainability of Appeal before this Tribunal, which has been given by the Commissioner while rejecting the submission of the appellant in the present case, has not been argued anywhere by the revenue in that Appeal. Once the issue has been decided by the Tribunal in favour of appellant it can’t be reopened by any of the authorities below. The Commissioner has erred in recording the finding on the admissibility of the declaration filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the tribunal while following the decision of the Hon ble High Court of Gujarat in the case of Sadguru Construction Company versus Union of India reported in 2014-TIOL-630-HC-AHM-ST quashed the aforesaid show cause notice dated 25.11.2013 and held that the appellant s declaration under VCES Scheme needs to be accepted. The relevant paragraphs of the said decision are extracted as under:- xxx xxx xxx 4. The relevant facts that arise for consideration are, appellant herein filed VCES declaration which was sought to be filed by the appellant for the demands which have been raised against them; in the declaration appellant had indicated that they have paid the dues, on 02/05/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, the term tax dues defined under Section 105(1)(e) means service tax or tax payable for the period between 1-10-2007 to 31-12-2012 but not paid as on 1-3-2013. 16. Combined reading of Section 106 with Section 105(1)(e) would make it clear that the position of a declarant vis-a-vis his service tax dues would have to be ascertained as on 1-3-2013. If any proceedings for determination of the tax dues of a person have been initiated before 1-3-2013, declaration of such a person would not be accepted. Likewise, arrear of tax which could be declared in such declaration would be the service tax due or payable for the period between 1- 10-2007 to 31-12-2012 and which sum is not paid before 1-3-2013. In plain terms, therefore, if any servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onditions were that the proceedings for either declaration or recovery of the tax dues should not be pending on 1-3-2013 and secondly that the tax should not have been deposited before the said date. In the present case, both the conditions were fulfilled. 6. It can be seen that even the CBEC clarification dated 08/08/2013 on the issue was also considered by the Hon ble High Court and in paragraph 31 quashed and set aside the communication which rejected the VCES declaration. 7. Respectfully following the ratio of the said judgment of the High Court we hold that the impugned orders are unsustainable and liable to be set aside and we do so. 8. The impugned orders are set aside and the appeals are allowed. 3. In the meantime a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough the impugned order. While going through the order dated 29.12.2017 of the Tribunal in appellant s case concerning VCES scheme, I find that the ground of non-maintainability of Appeal before this Tribunal, which has been given by the Commissioner while rejecting the submission of the appellant in the present case, has not been argued anywhere by the revenue in that Appeal No.ST/86978/2014. 5. Once the issue has been decided by the Tribunal in favour of appellant it can t be reopened by any of the authorities below. The Commissioner has erred in recording the finding on the admissibility of the declaration filed by the appellant under the VCES Scheme. Nothing has been produced on record nor it is the case of revenue that the aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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