9911796707
TMI Blog2015 (11) TMI 1828X X X X Extracts X X X X X X X X Extracts X X X X ..... of the stand taken by the assessee in the correspondence exchanged with the Department, prior to submission of such declaration. That approach will be counterproductive to the purpose and intent for which the Scheme has been launched - for resolution of the disputes. In other words, the declaration cannot be jettisoned at the threshold as has been done in the present case, by referring to the stand taken by petitioner in its previous correspondence exchanged with the Department. Instead, the Department ought to have treated the disclosures made in the declaration by the petitioner as relevant facts; and the correctness thereof could be judged on its own merits. We have no manner of doubt that in the facts of the present case, it was not open to the Department to non-suit the petitioner from participating in the said Scheme at the threshold on the ground that the factual position stated in the declaration dated 4-12-1998, submitted in the prescribed Form 1-B, Annexure P-11, was incorrect as it was not consistent with the previous communication sent by the petitioner dated 15-6-1998 - much less is of such a nature that it would cause loss to public exchequer either directly or i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the declarations dated 4-12-98 filed by you, it is noticed that you have shown the amount of tax arrears as under :- AMOUNT OF TAX ARREARS AS PER SHOW CAUSE NOTICE AMOUNT PAID ON OR BEFORE FILING OF DECLN. BALANCE AMOUNT PAYABLE AS ON THE DATE OF DECLN. DUTY 3,64,238/- 94,294/- Vide PLA E. No. 02, dated 15-6-98 2,69,944/- FINE NIL NIL NIL PENALTY 3,64,238/- NIL 3,64,238/- INTEREST 20% from date of liability NIL 20% from date of liability. On inquiry, it has been found that you, vide your letter No. MF/EXCISE/98 dated 15-6-1998 have intimated to Commissioner (Appeals), Bhopal that you have made the pre-deposit of total duty of Rs. 3,64,238/- vide PLA Entry Nos. 26, 27, 28, 29, 30, dated 4-10-96, PLA Entry Nos. 34, dated 9-10-96, PLA Entry No. 02, dated 15-6-98 RG 23A Pt. II Entry No. 306, dated 16-6-98. Thus you ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken by the Department. 4. Having considered the rival submissions, we deem it apposite to reproduce the declaration filed by the petitioner under Section 89 of the Finance (No. 2) Act, 1988 in respect of Kar Vivad Samadhan Scheme, 1998 (Annexure P-11), which reads thus :- Form of Declaration under section 89 of the Finance (No. 2) Act, 1988 in respect of Kar Vivad Samadhan Scheme, 1998 Kar Vivad Samadhan Scheme Rules, 1998 FORM-IB {See rule 3(l)(b)} To The Designated Authority Central Excise Customs, BHOPAL. Sir/Madam, I hereby make a declaration under section 88 of the Finance (No. 2) Act, 1998. 1. Name of the declarant (in block letters) M/S MECH FAB INDUSTRIES 17-B, Sector-D, Industrial Area, Govindpura, Bhopal. Tel. No. Office/factory 587404 586273 Fax 527693 2. Address : Office Factory address (if dispute relates excisable goods) ------ do ------ 3. Status of the declarant (State whether Manufacturer, company etc.) Manufacturer De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Nil 4(c) Penalty Rs. 3,64,238.00 4(d) Interest Rs. 20% from the date of liability (5) Amount of Tax arrear paid on or before the date of Declaration (along with Date of payment and payment particulars) (in Rs.) (See Instruction 6) PLA No. RG23 P(II) Date Amount 02 - 15-6-98 94294 94294 6. Balance amount payable as on the date of declaration (Col. 4-5) Duty/Cess ₹ 2,69,944.00 Fine Rs. Nil Penalty ₹ 3,64,238.00 Interest ₹ 20% from the date of liability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , we wish to inform you that we have pre-deposited the duty adjudged vide the following details. S. No. PLA RG 23 A Part II Amount 1. 26, 27, 28, 29, 30, dated 4-10-96 --- 70917.00 2. 34, dated 9-10-96 --- 2527.00 3. 2, dated 15-6-98 --- 94294.00 4. ---- 306 dated 15-6-98 196500.00 Total = 364238.00 The photocopies of the relevant pages of PLA and RG 23 A Part II are being enclosed herewith. This is for your further necessary action. Thanking you Yours faithfully For MECH FAB INDUSTRIES Sd/- Mahesh Agrawal Managing Director. 6. It may be mentioned at this stage that after this communication, the petitioner received communication from the Assistant Commissioner, Central Excise, Division-I on 2-12-1998, Annexure P-6, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner had already paid the amount of ₹ 2,69,944/- towards duty/cess before 4-12-1998, that amount could not have been shown as the balance amount payable by the petitioner in the declaration. Per contra, the petitioner points out that the petitioner had made necessary book entries in the books of accounts, as was expected to be done in terms of communication received from the Assistant Commissioner, Central Excise, Division-I, dated 2-12-1998 and which was duly communicated to the Department by letter dated 3-12-1998 Annexure P-7. As a consequence thereof, on the date of submitting declaration on 4-12-1998, the amount mentioned in clause 6 of the declaration against item Duty/cess was payable by the petitioner. 10. Assuming that the Department is right in pointing out that the duty/cess was already paid by the petitioner and was not due on 4-12-1998 when the declaration was filed, we fail to understand as to how that would result in causing willful loss to the public exchequer, as such. It would be a different matter, if the petitioner was to incorrectly claim that the amount was not outstanding on the day of filing declaration. Only then it would be a case of wrong or incor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch less is of such a nature that it would cause loss to public exchequer either directly or indirectly. If the petitioner has already paid the amount towards Duty/cess, there can be no loss to the public exchequer as such. The petitioner, at best, would be entitled for adjustment as per the Scheme propounded, which is a matter to be considered by the Appropriate Authority. It is also open to the Appropriate Authority to consider as to whether the assessee, who has already paid the amount towards Duty/cess is eligible to participate in the Scheme. 12. In our opinion, the communication dated 3-3-1998, Annexure P-12, is founded on incorrect understanding of the requirement of declaration to be filed in the prescribed format and disclosures made by the assessee in respect of the respective items to be declared therein. In the fact situation of the present case, it is not possible to hold that the petitioner had misdeclared the relevant information, as noted in the impugned communication. 13. Accordingly, this petition succeeds. The impugned communication, Annexure P-12, is quashed and set aside. Instead, the Appropriate Authority is directed to process the proposal/declaration o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
