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TMI Blog2021 (3) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... tted its tax liability of ₹ 88,16,598.00 in the memorandum of appeal, the tax liability of the petitioner under the scheme is to be computed on the balance amount and the relief of 50% of tax dues under the scheme is required to be given to the petitioner only on the said balance amount which is ₹ 78,10,369.00. Respondent No.3 has arrived at the total tax payable at ₹ 1,27,21,782.50 and has therefore called upon the petitioner to pay the net amount payable of ₹ 16,47,860.50 after giving the petitioner the benefit of the deposit of ₹ 1,10,73,922.00. The principal reason for denial of the benefit to the petitioner is due to the alleged admission by the petitioner of its admitted duty liability in the memorandum of appeal filed before the Commissioner (Appeals) which has been relied upon by the Designated Committee. We have perused the memorandum of appeal filed by the petitioner before the Commissioner (Appeals). The finding in the impugned order dated 11.09.2020 that the petitioner has admitted its tax liability of ₹ 88,16,598.00 before the Commissioner (Appeals) and the Settlement Commission against the total confirmed tax of ₹ 1,66,2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 2020. 3. Writ Petition (L) No.4417 of 2020 has been filed under Article 226 of the Constitution of India for quashing of order dated 11.09.2020 passed by the respondent No.3 i.e. the Designated Committee and further seeks a direction to the respondents to settle the declaration of the petitioner dated 20.09.2019 filed under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 (for short SVLDRS ) and thus granting consequential relief(s) including refund of an amount of ₹ 45,60,438.00 to the petitioner. 4. Before we advert to the submissions made on behalf of the respective parties, it will be apposite to briefly refer to the relevant facts as pleaded. For the sake of convenience, facts in Writ Petition (L) No.4417 of 2020 are considered for adjudication. 4.1. Petitioner is a manufacturing unit holding central excise registration for manufacturing of pressure vessels i.e. road tankers and storage tanks falling under tariff item No.73090090 of the first schedule to the Central Excise Tariff Act, 1985. 4.2. Intelligence input was received by officers of the headquarters of Anti Evasion Wing Thane-I Commissionerate that the petitioner was clearing pressure vessel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) at ₹ 1,66,26,967.00 and 'amount payable' under the scheme as per section 121(e) of the said Act at ₹ 9,95,606.00 after deducting and adjusting the sums of ₹ 55,17,877.00 deposited towards central excise duty and ₹ 18,00,000.00 deposited towards interest under section 124(2) of the said Act. 4.9. Respondent No.3 i.e. Designated Committee issued Form SVLDRS-2 on 23.10.2019 quantifying the estimated amount payable under the scheme at ₹ 33,13,483.00. Petitioner appeared before the Designated Committee for personal hearing on 23.10.2019 and filed its written submissions on 29.10.2019. 4.10. Respondent No.3 i.e. Designated Committee re-issued Form SVLDRS-2 on 12.11.2019 estimating the amount payable by the petitioner under the scheme at ₹ 33,13,483.00. 4.11. Petitioner submitted Form SVLDRS-2A on 12.11.2019 itself stating that the challans pertaining to two deposits namely ₹ 55,17,877.00 paid towards central excise duty and ₹ 18,00,000.00 paid towards interest were not considered while estimating the amount and if so considered the balance final amount payable under the scheme would be ₹ 9,95,607.00 only. 4.12. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. Respondents have filed reply affidavit refuting the contentions of the petitioner and justifying the order passed by the Designated Committee. Thus respondents seek dismissal of the writ petition. 7. Mr. Namboodiri, learned counsel appearing on behalf of the petitioner submitted that petitioner had filed its declaration / application in Form SVLDRS-1 in the category of 'Litigation' and 'subcategory of 'Appeal Pending' as on 30.06.2019. The appeal filed by the petitioner against the Order-in-Original dated 31.01.2019 was pending adjudication before the Commissioner (Appeals) as on 30.06.2019; petitioner's declaration was therefore covered under the above category specified in section 124(1)(a)(ii) of the said Act; under section 124(1)(a)(ii) read with section 123(a)(i) of the said Act, the total 'tax dues' in the petitioner's case would be ₹ 1,66,26,967.00 and the relief available under the scheme would be 50% of the 'tax dues' i.e. ₹ 83,13,484.00. He submitted that petitioner had during investigation and pendency of the proceedings deposited the sums of ₹ 50,00,000.00, ₹ 5,17,877.00 and ₹ 18,00,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Settlement Commission was rejected and consequentially Order-in-Original dated 31.01.2019 attained finality. It is vehemently contended that since the petitioner had categorically admitted its central excise duty liability of ₹ 88,16,598.00 and there being no dispute as regards the admitted central excise duty liability by the petitioner, the said admitted duty is recoverable from the petitioner and therefore no tax relief under the scheme can be extended to the petitioner on the said admitted duty liability; tax relief under the scheme would therefore be available only towards the remaining portion of the central excise duty i.e. ₹ 78,10,369.00 (₹ 1,66,26,967.00 less ₹ 88,16,598.00). 8.1. It is further contended that petitioner had admitted its duty liability in the memorandum of appeal dated 12.04.2019 filed before the Commissioner (Appeals) in paragraph No.7 of the grounds of appeal; such admission of tax liability of ₹ 88,16,598.00 against the total confirmed tax liability of ₹ 1,66,26,967.00 would therefore be outside the purview of the benefit to be given under the scheme and would stand excluded from the total tax liability; the disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner which is required to be refunded to the petitioner. 10. Submissions advanced across the bar have been duly considered and also examined the materials on record. 11. Before we proceed to deal with the submissions made by the respective counsel, it will be apposite to refer to the provisions of the Finance Act, 2019 (already referred to as 'the Act' hereinafter) which are relevant in the present case. 12. Section 123(a) of the said Act states that for the purposes of the scheme, tax dues means the total amount of duty which is being disputed in a single appeal arising out of an order and pending as on 30.06.2019 or in the case of more than one appeal arising out of an order which are pending as on 30.06.2019 before the appellate forum. Section 123 reads thus:- 123. For the purposes of the Scheme, tax dues means- (a) where- (i) a single appeal arising out of an order is pending as on the 30th day of June, 2019 before the appellate forum, the total amount of duty which is being disputed in the said appeal; (ii) more than one appeal arising out of an order, one by the declarant and the other being a departmental appeal, which ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owever, the proviso to this section states that if amount of pre-deposit or deposit already paid by the declarant exceeds the amount payable by the declarant, as indicated in the statement issued by the Designated Committee, the declarant shall not be entitled to any relief. section 124(1)(a) and section 124(2) are extracted as under:- 124. (1) Subject to the conditions specified in subsection (2), the relief available to a declarant under this Scheme shall be calculated as follows:- (a) where the tax dues are relatable to a show cause notice or one or more appeals arising out of such notice which is pending as on the 30th day of June, 2019,and if the amount of duty is,- (i) rupees fifty lakhs or less, then, seventy per cent. of the tax dues; (ii) more than rupees fifty lakhs, then, fifty per cent. of the tax dues; (2) The relief calculated under sub-section(1) shall be subject to the condition that any amount paid as pre deposit at any stage of appellate proceedings under the indirect tax enactment or as deposit during enquiry, investigation or audit, shall be deducted when issuing the statement indicating the amount payable by the declarant: Provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmissions in this ground of appeal and without admitting but assuming, the appellants submit that as per the above table as against 562 COCs issued till May, 2017, the learned Joint Commissioner failed to consider that the appellants had cleared 422 number of Pressure Vessels / Tanks on payment of appropriate Central Excise / GST and 140 number of Pressure Vessels / Tankers were cleared without payment of duty during the years 2012-13 to 2016-17. The appellants submits that the number of Pressure Vessels / Tanks which are cleared without determination of appropriate Central Excise Duty for the period 2012-2017 are only 140 and not 261 as found by the learned adjudicating authority in the impugned order. Without disputing, but adopting the assessable value and Central Excise duty as is mentioned in Annexure B to G to the Notice, the learned Joint Commissioner ought to have considered that the Central Excise duty which could have been confirmed against the appellants would be as under : Year Number of Pressure Vessels Assessable Value of Clearnace (in Rs.) Duty Admitted (in Rs.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10 are extracted herein below:- PRAYER In view of the foregoing, the appellants most respectfully pray that the Hon'ble Commissioner (Appeals) may be pleased to grant the following relief :- (a) The impugned Order-in-Original No.17/JC/Eureka/18-19 dated 31.01.2019 passed by Joint Commissioner of Central GST C.Excise, Thane Rural Commissionerate may be set aside in its entirety. (b) The Central Excise duty of ₹ 1,66,26,967/confirmed in the impugned order along with interest may be set aside. (c) The penalty of ₹ 1,82,76,967/- imposed on the appellants in the impugned order may be set aside. (d) Any other relief which the Hon'ble Commissioner (Appeals) may like to grant looking at the facts and circumstances of the case. 13.3. The order-in-appeal was passed on 08.08.2019 i.e. after the cut off date (i.e. 30.06.2019) by the Commissioner (Appeals), Thane. The order-in-appeal in the opening paragraph No.1 records as follows :- ORDER-IN-APPEAL No. PVNS/103-104/Appeals Thane /TR/ 2019-20 M/s Eureka Fabricators Pvt. Ltd., Plot No. F-84, Additional MIDC, Anand Nagar, Ambarnath (East), District Thane-421501 (hereinafter ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tstanding amount against the declarant and this is the net amount after deducting the dues that he has already paid in the form of pre-deposit, is not sustainable and deserves to be rejected. The clarification which is referred to and relied upon in para 14 of the impugned order is in the context of section 124(1)(c) concerning pre-deposits which have been paid and are required to be appropriated against the outstanding amount and not in the context of arriving at the amount of tax dues as contemplated under section 123(a) of the said Act. 13.7. In the present case petitioner has made pre-deposit of the following sums towards duty liability; viz; ₹ 50,00,000.00 besides ₹ 5,56,045.00 and ₹ 18,00,000.00 towards interest. Further, petitioner has deposited a sum of ₹ 55,56,045.00 under order dated 30.06.2020 passed by this Court in Writ Petition No.3510 of 2019 for reconsideration of the petitioner's case. The petitioner therefore has deposited the total sum of ₹ 1,29,12,090.00 with the respondents, though petitioner's deposit of ₹ 55,56,045.00 on orders of the Court cannot be construed as a pre-deposit or a deposit under the scheme; the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r direction to the Respondents to finally settle the declaration filed by the Petitioner in Form SVLDRS-1 ARN LD2009190002979 by issuing discharge certificate in Form SVLDRS-4 determining the amount payable under the Scheme at ₹ 9,95,606/-; (d) Issue a writ of mandamus and/or any other appropriate writ, order or direction to the Respondents to refund ₹ 45,60,438/- to the Petitioner out of the amount of ₹ 55,56,045/- paid by the Petitioner as per Order dated 30.06.2020 of this Hon'ble Court. 17. In view of the above order passed in Writ Petition (L) No.4417 of 2020, the companion Writ Petition (L) No.4416 of 2020 in respect of personal penalty imposed on the Director also stands allowed in terms of prayer clauses 20 (b) and (c) of the said petition, which read as under:- 20. (b) Set aside the rejection of Form SVLDRS-1 dated 30.10.2019 ARN No. LD3010190000368 by Respondent No.3 and allow the Petition; (c) Issue a writ of mandamus and/or any other appropriate writ, order or direction to the Respondents to finally settle the declaration filed by the Petitioner in Form SVLDRS-1 dated 30.10.2019 ARN No. LD3010190000368 by issuing discharge c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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