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TMI Blog2022 (11) TMI 1229X X X X Extracts X X X X X X X X Extracts X X X X ..... artment. The stance taken by the Department in relying upon the SCN for determining the tax dues at Rs. 1,34,66,456/- is contrary to its stand before the CESTAT, wherein it accepted the determination of tax dues at Rs. 1,11,35,419/- - The inconsistency of the stance of the Department is further evident from the fact that if the appeal had been pending when the Scheme was announced the Petitioner s tax dues would have been admittedly, determined by the Respondent as per the order-in-original and not SCN. Therefore, the submissions of the Respondent cannot be accepted as the same will lead to an absurdity and make the scheme arbitrary. It would also be relevant to refer to the judgment of this Court in SEVENTH PLANE NETWORKS PRIVATE LIMITED VERSUS UNION OF INDIA ORS. [ 2020 (8) TMI 343 - DELHI HIGH COURT] wherein the Court has held that a liberal interpretation has to be given to the scheme as intent is to unload the baggage relating to legacy disputes under the Central Excise and Service Tax and to allow the businesses to make a fresh beginning. In this view of the matter, since the Petitioner herein seeks to avail the benefits of the Scheme and is willing to pay the tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal against the order-in-original before Customs Excise and Service Tax Appellate Tribunal (CESTAT) [ Tribunal ]. The appeal filed by the Petitioner was disposed of vide order dated 06th October, 2017, whereby the Tribunal set aside the order-in-original and remanded the matter to the adjudicating authority for passing de novo orders. 4. Post the remand, the matter has remained pending for adjudication before the adjudicating authority. In the meantime, the Scheme was enacted. The relevant provisions of the Scheme on which the Petitioner relies upon are: a. The cases pending at adjudication or appellate stage will be covered under litigation category. b. The 'Tax dues' in this category will be equal to tax amount disputed in appeal if the case is pending at appellate stage and equal to amount proposed to be recovered in SCN if the SCN is pending at original adjudication stage. If Tax dues exceeds Rs. Fifty lacs there will be Tax Relief equal to 50% of Tax Dues . c. Pre-deposits will be reduced from the amount payable. 5. The Petitioner was willing to avail the said Scheme and it, accordingly, filed its declaration in Form SVLDRS-1 under the Scheme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd as determined in the order-in-original dated 31st October, 2012. 8. He further, states that the perusal of the Tribunal s order dated 06 th October, 2017, at page nos. 109, 110 and 111 discloses that the computation of Central Excise Duty at Rs. 1,11,35,419/- determined by the adjudicating authority was correction of the calculation of errors, which had crept in the SCN dated 14th March, 2011. He states that therefore, the reduction of demand of Central Excise Duty in the order of the adjudicating authority dated 31st October, 2012, is a consequence of the correction of the calculation errors in the SCN dated 14th March, 2011 and for this reason additionally the demand in the SCN cannot be relied upon by the Designated Committee. 9. He relies upon the judgment of the High Court of Bombay in Jyoti Plastic Works Pvt. Ltd. v. Union of India, 2020 (43) G.S.T.L. 675 (Bom.) wherein the Court in similar facts, where the matter was pending with the adjudicating authority for remand, held that the Central Excise Duty amount ascertained in order-in-original is the relevant figure, which should be taken into consideration by Designated Committee for determining the amount of tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the SCN). 12. We have heard the learned counsel for the parties. The facts in the present writ petition are not in dispute. Learned counsel for the Respondent admits that the Department was satisfied with the demand of Rs. 1,11,35,419/- determined in the order-in-original and no appeal was filed by the Department against the portion of the demand which was set aside by the adjudicating authority. He further states that the Department has not filed any appeal against the judgment of the Bombay High Court in Jyoti Plastics Pvt. Ltd. (supra). In the said judgment, the High Court after considering Section 123(b) of the Finance (No.2) Act, 2019, has held that the situation which arises due to the setting aside of the order-in-original by the Tribunal to facilitate the remand order is not contemplated in clause (b). 13. The Petitioner herein filed an appeal against the demand determined at Rs. 1,11,35,419/- in the order-in-original. The Tribunal returned a finding that the adjudicating authority had failed to comply with the requirements of Section 9D of the Central Excise Act, 1944, (the Act ) as no opportunity of examination and cross-examination of witnesses was extended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issions of the Respondent cannot be accepted as the same will lead to an absurdity and make the scheme arbitrary. 18. In this regard, it would also be relevant to refer to the judgment of this Court in Seventh Plane Networks Private Limited v. Union of India and Others, 2020 SCC OnLine Del 2446 wherein the Court has held that a liberal interpretation has to be given to the scheme as intent is to unload the baggage relating to legacy disputes under the Central Excise and Service Tax and to allow the businesses to make a fresh beginning. 19. Thus, in this view of the matter, since the Petitioner herein seeks to avail the benefits of the Scheme and is willing to pay the tax dues determined as per the demand raised in the order-in-original, he cannot be denied the said option and he cannot be put in a worse-off situation for having succeeded in his appeal. 20. In light of the above, we direct that the disputed tax dues in respect of the Petitioner would be the amount confirmed by the original authority in the first round of litigation of Rs. 1,11,35,419/-. The determination of tax by the Designated Committee in Form No. SVLDRS-3 is set aside. 21. This Court vide its ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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