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TMI Blog2022 (6) TMI 616X X X X Extracts X X X X X X X X Extracts X X X X ..... here is no merits in the impugned order passed by the respondents by demanding a sum of Rs.1,54,20,216 from the petitioner. The rules contemplate hearing. The hearing is meant for proper determination of the amount to be paid by an assessee. The petitioner has not been heard - the impugned order is set aside - case remitted back to the jurisdictional officer to arrive at the proper amount to be paid by the petitioner in the provisions of the scheme. Petition allowed by way of remand. - W.P.No.818 of 2021 And W.M.P.Nos.880 and 883 of 2021 - - - Dated:- 29-4-2022 - Hon'ble Mr.Justice C.Saravanan For the Petitioner : Mr.N.Bharathi for Mr.S.Muthuvenkatraman For the Respondents 1,2 And 3 : Dr.G.Babu Central Government Standing Counsel, Mr.V.Sundaresan Senior Standing Counsel ORDER In this writ petition, the petitioner has challenged the impugned order dated 14.01.2020 passed by the second respondent as the Designated Authority under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019. 2. By the impugned order dated 14.01.2020, the second respondent has determined the amount payable by the petitioner towards full and final settlement of tax dues un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs.1,03,71,501/- which was adjusted in their returns. It is submitted that the Show Cause Notice has not taken into account of Cenvat Credit Portion but has simply levied the entire demand without deducting Cenvat Credit utilization and has sought to deny a credit of Rs.1,03,71,501/-. Thus, resulting in double taxation. It is submitted that before passing order the designated authority should have heard the petitioner. 9. The learned counsel for the petitioner has drawn attention to a Circular No.1071/4/2019-CX.8, F.No.267/78/2019/CX-8-P.III issued by the Department of Revenue, Central Board of Indirect Taxes and Customs, Ministry of Finance. 10. The learned counsel for the petitioner specifically drawn attention to paragraph 10(c) of the Provisions of the Finance (No.2) Act, 2019 which reads as under:- (c). This Scheme provides for adjustment of any amount paid as pre-deposit during appellate proceedings or as deposit during enquiry, investigation or audit [Sections 124(2) and 130(2) refer]. In certain matters, tax may have been paid by utilising the input credit, and the matter is under dispute. In such cases, the tax already paid through input credit shall be adjust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 125, except when it relates to a case of voluntary disclosure of an amount of duty, shall be verified by the designated committee based on the particulars furnished by the declarant as well as the records available with the Department. Provided that no such verification shall be made in case where a voluntary disclosure of an amount of duty has been made by the declarant. (2) The composition and functioning of the designated committee shall be such as may be prescribed. 16. The learned counsel for the petitioner has placed reliance on the following decisions: i. M/s. Voss Exotech Automotive Private Limited Vs. The Commissioner of Central Excise, reported in 2018(3)TMI 1048 CESTAT MUMBAI ii. Hariprabha Chemicals Private Limited Vs. CCGST, Kolhapur, reported in 2018 (9) TMI 19 CESTAT MUMBAI iii. M/s.Suryadev Alloys and Power Private Limited Vs. Commissioner of GST and Central Excise Chennai Outer, reported in 2018 (11) TMI 1019 CESTAT MUMBAI iv. The Commissioner of Central Tax, Visakhapatnam Vs. Vijayasri Organics Limited, reported in 2018 (12) TMI 1236 CESTAT HYDERABAD v. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... put tax credit account under the indirect tax enactment or any other Act; (b) shall not be refundable under any circumstances; (c) shall not, under the indirect tax enactment or under any other Act, (i) be taken as input tax credit; or (ii) entitle any person to take input tax credit, as a recipient, of the excisable goods or taxable services, with respect to the matter and time period covered in the declaration. (2) In case any pre-deposit or other deposit already paid exceeds the amount payable as indicated in the statement of the designated committee, the difference shall not be refunded. 21. The learned counsel for the senior standing counsel for the second and third respondents has also referred paragraph 9 of the Counter Affidavit which reads as under:- 9. The allegation of the petitioner that the committee had not considered an amount of Rs.8,53,468/- as pre-deposit as the said amount towards interest and penalty (As per challans, Rs.8,13,468/- is paid as interest and Rs.40,000/- paid as penalty). It is also submitted that the amount of Rs.1,03,71,501/- shown as pre-deposit appears to be incorrect in as much as the said credit has been demanded in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that both the assessee and the Government namely the respondents are equal partners and implement the Scheme. It is submitted that the calculation in the impugned determination is wholly incorrect. 28. Alternatively, the learned counsel for the respondents also submits that even if the amount of Input Tax Credit which is sought to be denied to the petitioner has ignored the liability of the petitioner cannot exceed Rs.1,74,54,820.00/-. 29. It is submitted that even if the petitioner gives up the entire Input Tax Credit which was utilized for discharging the service tax liability, the cumulative demand cannot exceed the aforesaid amount under the Scheme. 30. I have considered the arguments advanced by the learned counsel for the petitioner and the learned Central Government Standing counsel and Senior Standing Counsel for the respondents. I have also perused the materials available on records. 31. The petitioner has filed a declaration under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 . However, the petitioner has claimed that as against the tax demanded in the Show Cause Notice, the petitioner has pre-deposited a sum of Rs.74.02,155/-. The peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditions specified in sub-section (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; (b) where the tax dues are relatable to a show cause notice for late fee or penalty only, and the amount of duty in the said notice has been paid or is nil, then, the entire amount of late fee or penalty; (c) where the tax dues are relatable to an amount in arrears and,- (i) the amount of duty is, rupees fifty lakhs or less, then, sixty per cent. of the tax dues; (ii) the amount of duty is more than rupees fifty lakhs, then, forty per cent. of the tax dues; (iii)in a return under the indirect tax enactment, wherein the declarant has indicated an amount of duty as payable but not paid it and the duty amount indicated is, - (A) rupees fifty lakhs or less, then, sixty per cent. of the tax dues; (B) am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at nothing contained in the above clauses shall be applicable where such an appeal has been heard finally on or before the 30th day of June, 2019. Illustration 1: The show cause notice to a declarant was for an amount of duty of Rs.1000 and an amount of penalty of Rs.100. The order was for an amount of duty of Rs.1000 and amount of penalty of Rs.100. The declarant files an appeal against this order. The amount of duty which is being disputed is Rs.1000 and hence the tax dues are Rs.1000. Illustration 2: The show cause notice to a declarant was for an amount of duty of Rs.1000 and an amount of penalty of Rs.100. The order was for an amount of duty of Rs.900 and penalty of Rs. 90. The declarant files an appeal against this order. The amount of duty which is being disputed is Rs. 900 and hence tax dues are Rs.900. Illustration 3: The show cause notice to a declarant was for an amount of duty of Rs.1000 and an amount of penalty of Rs.100. The order was for an amount of duty of Rs. 900 and penalty of Rs. 90. The declarant files an appeal against this order of determination. The departmental appeal is for an amount of duty of Rs. 100 and penalty of Rs. 10. The amount of du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2021. 41. Where the amount estimated by the Designated Committee estimated to be payable by the declarant exceeds the amount declared by the declarant, then the Designated Committee shall issue in an electronic form within thirty days of the date of receipt of the declaration of such an estimate of the amount payable by the declarant within thirty days of the date of receipt of the declaration. 42. After an issue of the estimate in electronic form, the Designated Committee was also required to give an opportunity of being heard to the declarant, if the declarant so desire. 43. The declarant is required to pay the amount through Internet Banking and the amount payable as indicated in the statement issued by the Designated Committee. On payment of the amount indicated in the statement of the Designated Committee and on producing a proof of withdrawal on any appeal, the Designated Committee has to issue a discharge certificate in electronic form within a period of thirty days from the date of payment of proof. This is evident from reading of Section 127 of the Finance Act, 2019 and Rules made there under. 44. The scheme also makes the following clear:- i. the amount can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the petitioner had suppressed the taxable value and the service tax liability with an intent to evade payment. However, the show cause notice demands a sum of Rs.3,49,09,640 as document. It further states that it is not clear from the documents submitted by M/s SB Aditya that the CENVAT Credit of Rs.1,03,71,501/- availed in the ST-3 returns for the said period 2012-13 to 2014-15 in respect of which invoices, as the year-wise CENVAT credit mentioned in the invoices submitted to DGGI during investigation did not tally with the year-wise CENVAT credit figures in their ST-3 Returns (entries for each financial year mentioned in last two columns of the above table are substantially different). 50. Similarly, the petitioner appears to have claimed a restricted credit of Rs.1,03,71,501/- as against invoice submitted evidencing the input tax credit for a sum of Rs.1,78,44,649/-. The show cause notice seeks to deny the entire credit of Rs.1,03,71,501/-availed as detailed below:- Period Input Service Credit claimed during investigation (Rs.) Credit Invoices not submitted for (-) (Rs.) Credit Invoices submitted t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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