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TMI Blog2022 (12) TMI 603X X X X Extracts X X X X X X X X Extracts X X X X ..... ed did not bar the respective petitioners from challenging the impugned orders rejecting their application under the SVLDRS,2019 Had the petitioner immediately challenged the impugned orders rejecting their declaration as soon as it was communicated to them before the so called expiry period under SVLDRS,2019, could it be said that the petitioners were barred from proceeding further and the Court was barred from passing a final order? In our view, the writ petitions could not have been dismissed. If the Declarations were filed for settling the tax case under SVLDRS, 2019 in time but were rejected at the threshold, an applicant whose application was rejected cannot be left without any remedy as the right to have the case settled under the SVLDRS, 2019 is a substantive right. - In our view, the respective Writ petitions cannot be rejected in limine. Validity of show cause notice - Proper officer - HELD THAT:- the second respondent, the Principal Additional Director General, Directorate General of Goods and Service Tax Intelligence, is a Central Excise Officer. The second respondent was therefore competent to issue the impugned Show Cause Notice No.47 of 2020 dated 25.09.2020 under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... une 2017. However, only an adhoc quantification was made for the tax dues period between April 2017 to June 2017. Therefore, there was quantification for the aforesaid period alone. No quantification was provided by the petitioner for the period between March 2016 to March 2017 for the purpose of definition under Section 121(r) r/w Section 123(c) Section 124(1)(d). The disability under Section 125(1)(e) of SVLDRS, 2019 is attracted for the period between March 2016 to March 2017 and therefore as an errant taxpayer whose tax liability has not been determined, the petitioner is not entitled to avail the benefit of SVLDRS, 2019 for the period between March 2016 to March 2017. X X X X Extracts X X X X X X X X Extracts X X X X ..... W.P.No.3320 of 2022 W.P.No.3322 of 2022 For issuance of a Writ of Certiorari, to call for the records pertaining to the impugned Show Cause Notice dated 25.09.2020 bearing reference SCN No.47/2020 in F.No. INV/ DGCEI/ CHZU/ ST/ 150/ 2016/ 7110 issued by the second respondent Principal Additional Director General, Directorate General of Goods and Service Tax Intelligence, Chennai Zonal Unit and quash the same. For issuance of a Writ of Certiorari, to call for the records relating to the Notification No.22/2014-Service Tax dated 16.09.2014 issued by first respondent Secretary, Department of Revenue, Ministry of Finance, Union of India and quash the same. 9. By an order dated 23.02.2022, a learned Single Judge of this Court directed the Registry to list all these four writ petitions together for a common disposal. 10. Thereafter, the learned Single Bench has referred these four Writ Petitions to be listed before the Division Bench vide order dated 09.03.2022 in view of an apparently conflicting dictum of the Division Bench of this Court in Vital Rao Jayaprakash Vs. The Designated Committee under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 and others, dated 23.02. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssuance of a Writ of Certiorarified Mandamus, to call for the records pertaining in Form SVLDRS-1 bearing ARN No. LD1401200001786 dated 14.01.2020 on the file of the First Respondent herein and to quash the entry made rejecting the Declaration on the grounds of ineligibility as illegal unconstitutional and consequently direct the First respondent to consider and accept the declaration filed by the petitioner against the Audit quantification of admitted duty to the tune of Rs.32 08 952/- as per the provisions of the Act and the Circulars issued by the department under the Scheme. The impugned order is dated 14.01.2020 and the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 was itself in force only till 30.06.2020. The Writ petition has been filed on 08.09.2020 long after the closure of the scheme. This writ petition is hence not maintainable and, dismissed. Consequently, connected Miscellaneous Petitions are closed. No costs 18. As mentioned above, the above decision of the learned Single Judge was confirmed by the Division Bench in W.A.No.2450 of 2021 vide its order dated 23.02.2022. The Division Bench has examined the issue and concluded as follows:- "11. On appreciati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for quantification of the service tax liability and there is no whisper that he intended to avail the benefits of the scheme. Secondly, the letter also indicates that as on 13.06.2019, the service tax liability of the appellant has not been quantified, which is one of the preconditions to avail the benefits of the scheme. Therefore, the rejection of the application of the appellant by the first respondent herein is proper. 14. Even otherwise, as rightly pointed out by the learned Judge, the writ petition itself was filed after the period specified under the scheme came to an end, while so, no direction could be issued to the respondents to entertain the application of the appellant under the scheme. In such view of the matter, we do not find any illegality in the order passed by the learned Judge dismissing the writ petition of the appellant. 15. In the result, we confirm the order dated 17.09.2020 passed by the learned Judge in W.P. No. 12635 of 2020 and consequently we dismiss this writ appeal. No costs. Connected miscellaneous petition is closed." 19. It was in this background, by an order dated 09.03.2022 in these four writ petitions, a Single Judge made a reference to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the view that, since there has been an order passed by the Hon'ble Division Bench, where, according to the learned counsel for the petitioners that the limitation extended by the Hon'ble Supreme Court of India by suo-moto writ petition with effect from 15.03.2020, which has been time and again extended up to recently with a rider of extension of further 90 days, has not been brought to the notice of the Hon'ble Division Bench, that issue since has not been taken into account before giving this view of the Hon'ble Division Bench, confirming the stand taken by the writ court in the said writ appeal, the issue can be re-agitated. 7. In order to resolve this controversy, I feel that the said issue now raised by both sides on the limitation as well as the maintainability of these writ petitions can best be resolved by the Hon'ble Division Bench. Hence, I am of the view that, this matter can be referred to the Hon'ble Division Bench for the said purpose. 8. Hence, I request the Registry to place the matter before the Hon'ble Chief Justice for taking an appropriate decision." 20. The respective petitioners filed applications under SVLDRS, 2019 and the fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tement of Objects and Reasons to Chapter V of the Finance Bill, 2019 reads as under:- Clauses 119 to 134 of Chapter V of the Bill seeks to provide for SabkaViswas (Legacy Dispute Resolution) Scheme, 2019. The Scheme is a one time measure for liquidation of past disputes of Central Excise and Service Tax as well as to ensure disclosure of unpaid taxes by a person eligible to make a declaration. The Scheme shall be enforced by the Central Government from a date to be notified. It provides that eligible persons shall declare the tax dues and pay the same in accordance with the provisions of the Scheme. It further provides for certain immunities including penalty, interest or any other proceedings under the Central Excise Act, 1944 or Chapter V of the Finance Act, 1944 to those persons who pay the declared tax dues." 27. The salient feature of the SVLDRS, 2019 are as under:- a. Total waiver of interest and penalty. b. Immunity from prosecution. c. Cases pending in adjudication or appeal, a relief of 70% from the duty demand if it is rupees fifty lakh or less and 50% if it is more than rupees fifty lakhs. d. The same relief for cases under investigation and audit where the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and rejected the case of the petitioner therein on merits. 31. Only a passing reference was made by the Division Bench of this Court in its order dated 23.02.2022 in W.A.No.2450 of 2021 while dismissing the appeal against the order of the learned Single Judge in W.P.No.12635 of 2020 remarking that the writ petition was not maintainable as the scheme had come to an end on 30.6.2020. There is however no discussion. 32. That apart under the scheme, within 60 days of filing of a Declaration, the Designated Committee under SVLDRS, 2019 was expected to process the application. Within 30 days of issue of Form SVLDRS-3, an applicant was expected to pay the amount. 33. The late date for filing a Declaration was extended from 31.12.2019 to 15.01.2020. Due to outbreak of COVID 19 pandemic, the last date for making payment was extended to 30.06.2020. Thus, various factor contributed to the longevity of the scheme being extended. 34. Apart from outbreak of Covid-19, litigations have ensured that the scheme did not close for those who have opted to settle their tax due under SVLDRS, 2019 by filing Declarations on or before the deadline of 31.12.2019 which was extended to 15.01.2020. 35. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from redressing their grievance before us under Art.226 of the Constitution of India. 43. Furthermore, there was no requirement for the case to bereferred to the Division Bench of this Court on account of orders passed by the Hon'ble Supreme Court extending the period of limitation due to outbreak of Covid-19 pandemic. 44. We therefore answer the reference in favour of the writ petitioners. In our view, W.P.Nos.11785 & 12957 of 2020 challenging the rejection deserve the attention of this Court on merits. 45. We therefore now proceed to dispose these writ petitions by this common order on merits. 46. Before proceeding further with W.P.Nos.11785 & 12957 of 2020, we wish to make it clear that the challenge to Show Cause Notice No.47 of 2020 dated 25.09.2020 in W.P.Nos.3320 of 2022 and the challenge to the impugned Notification No.22/2014-ST dated 16.09.2014 in W.P No.3322 of 2022 are without merits. 47. The second respondent, Principal Additional Director General, Directorate General of Goods and Service Tax Intelligence in W.P.Nos.3320 of 2020 who has issued the impugned Show Cause Notice No.47 of 2020 dated 25.09.2020 has arrived at the total tax payable as Rs. 37,84,41,930 /- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the officers from the "Directorate of Central Excise Intelligence (DGCEI) [presently The Directorate of GST Intelligence]" and contrary to the restriction under Rule 3 of the Service Tax Rules, 1944 also fails. 179. The power of the Board under Notification 22/2014-ST dated 6.09.2014 cannot be read in a restricted manner. There is no impediment in appointing the officers of Directorate General of Central Excise Intelligence as "Central Excise Officers" to exercise the power pan India. 180. When the CENVAT Credit Rules, 2004 replaced the CENVAT Credit Rules, 2002, Notification No.7/2004-C.E. (N.T.), dated 11.03.2004 was issued by the Board under Section 2(b) of the Central Excise Act, 1944 and Rule 3 of the Service Rules, 1994 read with Section 65(4) of the Finance Act, 1994 as it stood during the relevant period. 181. By virtue of the Notification No.7/2004C.E. (N.T.), dated 11.03.2004, the officers specified in Column (2) of the Table to the said Notification were appointed as the "Central Excise Officers" and were invested with the powers to be exercised by them "throughout the territory of India" as are exercisable by the Central Excise Officer of the corresponding rank as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner of Central Excise Throughout the territory of India Investigation and adjudication of such cases, as may be assigned by the Board 2 The Commissioners of Central Excise (Adjudication) The Commissioner of Central Excise Throughout territory of India Investigation and adjudication of such cases, as may be assigned by the Board 184. By virtue of Notification No.6/2009-S.T. dated 30.01.2009 issued under powers conferred by Section 37A of the Central Excise Act, 1944 as made applicable to service tax by Section 83 of the Finance Act, the Central Government directed that the powers exercisable by the Central Excise and Customs under the provisions of Section 83A read with the Notification of the Government of India in the Ministry of Finance (Department of Revenue) No.16/2007-S.T., dated 19.04.2007 [G.S.R.No.303(E) dated 19.04.2007, shall be exercised by the Chief Commissioner of Central Excise for the purpose of assigning the adjudication of cases, under the provisions of the said Finance Act or Rules made thereunder, within his jurisdiction. 185. Similarly, similar powers were vested with the officers of Directorate General of Audit, Customs and Central Excise vide Not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Sayed Ali 2011 (265) E.L.T. 17 (S.C.) and in Canon India Pvt Ltd Vs Commissioner, 2021 (376) E.L.T. 3 (S.C.) cannot be imported in the context of the Central Excise Act, 1944 and/or The Finance Act, 1944. 190. Therefore, without doubt, the officers from the Directorate are "Central Excise Officers" as they have been vested with the powers of central exercise officers. 191. Thus, the definition of "Central Excise Officer" in Section 2(b) of the Central Excise Act, 1944 was made applicable for Section 73 of Chapter V of the Finance Act, 1994 which prescribes a machinery for recovery of service tax not levied or paid or short-levied or short-paid or erroneously refunded. 192. As mentioned above, under Rule 3 of the Service Tax Rules, 1994, the Board can appoint any other officer to exercise power within the "local limits". However, that would not mean that the officers of "Directorate of Central Excise Intelligence (DGCEI) [presently The Directorate of GST Intelligence]" who are already "Central Excise Officers" under Notification No.38/2001-C.E. (N.T), dated 26.06.2001 for whole of India cannot exercise power pan India. Notification No.22/2014-ST dated 6.09.2014 is to be rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1994 by the second respondent, the Principal Additional Director General, Directorate General of Goods and Service Tax Intelligence, Chennai will have to be dropped. 60. Similarly, if the petitioner in W.P No. 11785 of 2020 succeeds, the proceedings in SCN.No.06/2020(ADC) vide dated 26.02.2020 initiated by the Additional Commissioner, Office of the Commissioner of GST and Central Excise, Audit II Commissionerate will also have be dropped. 61. We shall now deal with W.P.Nos.11785 & 12957 of 2020.The respective petitioners have challenged the orders of the Designated Committee (hereinafter referred to as "The Designated Committee"), the relevant authority under the Sabka Vishwas (Legacy Disputes Resolution) Scheme, 2019 ("SVLDRS, 2019" in short). Before, proceeding further, it will be useful to refer to the object of the SVLDRS, 2019. 62. The SVLDRS, 2019 was introduced in the Union Budget under Chapter V of the Finance Bill, 2019 presented on 05.07.2019. It was introduced to de-clog the system and to pave a way to recover the tax dues of errant, recalcitrant taxpayer and those taxpayers who were in litigation with the government. 63. Under the SVLDRS, 2019, an amnesty scheme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for the matter for which he intends to file a declaration; (c) who have been issued a show cause notice under indirect tax enactment and the final hearing has taken place on or before the 30th day of June, 2019; (d) who have been issued a show cause notice under indirect tax enactment for an erroneous refund or refund; (e) who have been subjected to an enquiry or investigation or audit and the amount of duty involved in the said enquiry or investigation or audit has not been quantified on or before the 30th day of June, 2019; (f) A person making a voluntary disclosure.- (i) after being subjected to any enquiry or investigation or audit; or (ii) having filed a return under the indirect tax enactment, wherein he has indicated an amount of duty as payable, but has not paid it; (g) who have filed an application in the Settlement Commission for settlement of a case; (h) persons seeking to make declarations with respect to excisable goods set forth in the Fourth Schedule to the Central Excise Act, 1944. 71. Thus, SVLDRS, 2019 seeks to achieve twin objectives. It allows the department to close pending cases and recover a percentage of the tax/duty arrears/dues from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as wrongly denied the benefit of SVLDRS,2019 at the threshold. We shall refer to the quantification in the said letter dated 24.10.2018 later in this order. 80. The facts on record indicate that the petitioner in W.P.No.11785 of 2020 had earlier filed a Declaration under the SVLDRS, 2019 on 09.11.2019 in ARN No.0911190000206 for the period between April 2017 to June 2017. The application was earlier rejected on the ground of ineligibility stating that the "audit quantified the tax dues after 30.06.2019." 81. The petitioner thereafter filed a fresh a Declaration once again for settling the dispute under the SVLDRS, 2019 on 13.01.2020 for the same period once again perhaps on account of extension of time for filing Declaration vide Notification No. 1/2020 C.E. (N.T.), dated 14.05.2020. The said Declaration also came to be rejected vide the impugned order for the same reason as was stated when the earlier Declaration was rejected. 82. In W.P. No.12957 of 2020, a summons was issued on 23.04.2019 to the petitioner to appear before the authority thereunder on 07.05.2019. The petitioner was called upon to submit various documents. In particular, the petitioner was asked to su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... W.P.No.12957 of 2020) had quantified the tax dues payable by them before the cut off date of 30.6.2019. Therefore, it was submitted that the applications filed by the respective petitioners were in consonance with the SVLDRS, 2019 (i.e. Chapter V of the Finance Act, 2019) read with SVLDRS Rules, 2019. 88. It is the specific case of the respective petitioners that the tax dues declared by them in their communications dated 24.10.2018 and 07.05.2019 satisfied the definition of "tax dues" within the meaning of Section 123(c) of the SVLDRS, 2019 as "tax dues" were quantified before 30th June 2019 within the meaning of Section 124(1)(d) of SVLDRS, 2019. 89. It is further case of the respective petitioners that the applications under SVLDRS, 2019 have been wrongly rejected by the Designated Committee without even looking at the quantification by them on 24.10.2018 and 07.05.2019. 90. It is submitted that defence of the respondent that there was no quantification of "tax dues" on or before 30thJune, 2019 was misconceived. It is submitted that the Declaration filed by the respective petitioners have been wrongly rejected as the disqualification under Section 125(1)(e) of the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2020 (40) GSTL 441 (Del.) x. SabareeshPalliker Vs. Jurisdictional Designated Committee, Thane, 2021 (48) GSTL 240 (Bom.) 95. The petitioners, therefore pray for allowing the writ petition with a direction to the respondent Designated Committee to issue a discharge certificate in Form SVLDRS-4. 96. In W.P.No.11785 of 2020 the respondents are represented by Mr.A.P.Srinivas, learned Senior Standing Counsel and Mr.H.Siddarth, Junior Standing Counsel (Customs and GST) for the second respondent in W.P.No.11785 of 2020. In W.P.Nos.3320 & 3322 of 2022 the respondents are represented by Mr.RajnishPathiyil, the learned Senior Panel Counsel for the respondent in W.P.Nos.12957 of 2020 and for the first and second respondent in W.P.Nos.3320 & 3322 of 2022. 97. Mr.A.P. Srinivas, the learned Senior Standing Counsel has relied on the following decisions:- i. JSW Steel Limited Vs. Union of India and others, 2021 SCC OnLine Bom 3584 : (2022) 96 GSTR 184. ii. No.1 World Wide Express Pvt. Ltd. Vs. Union of India and others, 2021 SCC OnLine Del 4418 : (2022) 103 GSTR 310. 98. The learned Senior Standing Counsel has also drawn attention to certain E-mail exchanges between the petitioner and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Hon'ble Supreme Court by its order dated 04.10.2021 in SLP(C) No.15335 of 2021. 106. The learned Senior Panel Counsel submitted that at the time of introduction of SVLDRS, 2019, the respondents had also issued a clarification in the form of Frequently Asked Questions (FAQs). A specific reference was made to Question No.55 and answer given therein which reads as under:- Question No. 55 Answer I have declared sums of duty as payable by me in multiple returns but not paid the same. Do I need to file a single declaration for all these returns or a separate declaration for each return? For administrative convenience, a single declaration may be filed indicating separately the details of each such return in the declaration. However, it will not have any impact on the applicable tax relief. In other words, for the purpose of application of tax relief, each such return will be taken individually even though a single Estimate/Statement and Discharge Certificate shall be issued for a declaration. 107. The learned Senior Panel Counsel submitted that the application was rejected by the Designated Committee based on the report dated 28.02.2020 received from the Director Gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt contradictions in the SVLDRS, 2019. It results in benefits being conferred on only those whose cases do not attract the disqualifications in Section 125 of SVLDRS,2019. 117. As per Section 125 of SVLDRS, 2019, all persons who were in arrears of tax/duties under the specified central indirect tax enactment were eligible to file declaration under the SVLDRS, 2019to settle their case. 118. However, Section 125 of SVLDRS, 2019 is subject to certain exceptions. Those persons who fall under the exceptions are specifically excluded from availing the benefit of amnesty under the SVLDRS,2019. 119. Unless, the case of the respective petitioners fall within the exception to exception in Section 125 of SVLDRS, 2019, the question of their application/Declaration passing the first threshold for scrutiny by the Designated Committee would not arise. 120. The challenge to the rejection of the applications filed under SVLDRS, 2019 by the respective petitioners are similar. The defence of the respondents in W.P.No.11785 and W.P.No.12957 of 2020 are also similar. 121. As mentioned elsewhere, a Declaration in Form SVLDRS-1 could be made only by a person who was eligible to file such Declaration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the declarant within thirty days of the date of receipt of the declaration. (3) After the issue of the estimate under subsection (2), the designated committee shall give an opportunity of being heard to the declarant, if he so desires, before issuing the statement indicating the amount payable by the declarant: Provided that on sufficient cause being shown by the declarant, only one adjournment may be granted by the designated committee. (4) After hearing the declarant, a statement in electronic form indicating the amount payable by the declarant, shall be issued within a period of sixty days from the date of receipt of the declaration. (5) The declarant shall pay electronically through internet banking, the amount payable as indicated in the statement issued by the designated committee, within a period of thirty days from the date of issue of such statement. (6) Where the declarant has filed an appeal or reference or a reply to the show cause notice against any order or notice giving rise to the tax dues, before the appellate forum, other than the Supreme Court or the High Court, then, notwithstanding anything contained in any other provisions of any law for the time be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hstanding anything contained in rule 7, an assessee, in case of service provided by - 7B. Revision of Return- (1) An assessee may submit a revised return, in Form ST-3, in triplicate, to correct a mistake or omission, within a period of [ninety days] from the date of submission of the return under rule 7. (2) Every assessee shall submit the half yearly return by the 25th of the month following the particular half-year. [Provided that the Form 'ST-3' required to be submitted by the 25th day of October, 2012 shall cover the period between 1st April to 30th June, 2012 only:] [Provided further that the Form ST-3 for the period between the 1st day of July 2012 to the 30th day of September 2012,shall be submitted by the 25th day of March, 2013.] (Provided also that the return for the period from the 1st day of April, 2017 to the 30th day of June, 2017, shall be submitted by the 15th day of August 2017, in Form 'ST-3' or ' ST-3C', as the case may be. (3) Every assessee shall submit the half-yearly return electronically. (3A)Notwithstanding anything contained in sub-rule (1), every assessee shall submit an annual return for the financial year to which the return relates, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the interest and penal consequences as provided in the Act shall follow.] Explanation.- Where anassessee submits a revised return, the 'relevant date' for the purpose of recovery of service tax, if any, under section 73 of the Act shall be the date of submission of such revised return. (2) An assessee who has filed the annual return referred to in sub-rule (3A) of rule 7 by the due date may submit a revised return within a period of one month from the date of submission of the said annual return. 128. Returns can also be filed beyond the period prescribed in the above Rules. To implement the requirement of Section 70 of the Finance Act, 1994, Rule 7C has been provided in Service Tax Rules, 1994. Rule 7C of the Service Tax Rules, 1994 reads as under:- (1) Where the return prescribed under rule 7 is furnished after the date prescribed for submission of such return, the person liable to furnish the said return shall pay to the credit of the Central Government, for the period of delay of- (i) fifteen days from the date prescribed for submission of such return, an amount of five hundred rupees; (ii) beyond fifteen days but not later than thirty days from the date prescribed f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating to the declarant attaining finality; or iii. the declarant having filed a return under the indirect tax enactment on or before the 30th day of June, 2019, wherein he has admitted a tax liability but not paid it; 123. For the purposes of the Scheme, "tax dues" means- (a)……… (b)………. (c)………. (d) ……… (e) where an amount in arrears relating to the declarant is due, the amount in arrears. 124. (1) Subject to the conditions specified in sub-section (2), the relief available to a declarant under this Scheme shall be calculated as follows:- (a)…….. (b)……. (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) amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry or investigation was pending, the following table given below:- ENQUIRY OR INVESTIGATION OR AUDIT 125. (1) All persons shall be eligible to make a declaration under this Scheme except the following, namely:- (e) who have been subjected to an enquiry or investigation or audit and the amount of duty involved in the said enquiry or investigation or audit has not been quantified on or before the 30th day of June, 2019; Definition Tax Due Relief 121. In this Scheme, unless the context otherwise requires,- (g)"audit" means any scrutiny, verification and checks carried out under the indirect tax enactment, other than an enquiry or investigation, and will commence when a written intimation from the central excise officer regarding conducting of audit is received; (m)''enquiry or investigation'', under any of the indirect tax enactment, shall include the following actions, namely:- i. search of premises; ii issuance of summons; iii. requiring the production of accounts, documents or other evidence; iv. recording of statements; 123. For the purposes of the Scheme, "tax dues" means- (c) where an enquiry or investigation or audit is pending against the declarant, the am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refer to the other category namely "voluntary disclosure" where, though an application can be filed, no relief is available barring immunity to penalty and interest etc. 141. In case of "voluntary disclosure" in respect of an amount in arrears of tax, such a person is not eligible to file a declaration under SVLDRS, 2019 in terms of Section 125(1)(f)(ii) other than the following persons: 125. (1) All persons shall be eligible to make a declaration under this Scheme except the following, namely:- (f) a person making a voluntary disclosure,- (i) after being subjected to any enquiry or investigation or audit; or (ii) having filed a return under the indirect tax enactment, wherein he has indicated an amount of duty as payable, but has not paid it; 142. Thus, the "Voluntary Disclosure" can be made only by a person who has filed returns but has not paid the tax or who has been subjected to enquiry, investigation, or audit. Following table will demonstrate the position more clearly: 143. The clarification in the FAQs issued reads as under:- FAQs Voluntary disclosure (VD) Q10. I have been subjected to an enquiry or investigation or audit under indirect tax enactment and I wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as quantification of tax or duty in arrears, the scheme was applicable. 150. We now proceed to deal with the application filed under the SVLDRS, 2019 by the petitioner in W.P.No.11785 of 2020 (M/s. Win Power Engineering Pvt. Ltd.) for the second time on 13.01.2020 and its rejection in the system on the same date. 151. The petitioner in W.P.No.11785 of 2020 had earlier filed an application under the SVLDRS, 2019 on 09.11.2019. The same was rejected and a fresh application was filed on 13.01.2020. The second application also was auto-rejected in the system which is impugned in W.P.No.11785 of 2020. 152. An audit was being conducted at the time when SVLDRS, 2019 came into force with effect from 01.09.2019. The audit commenced on 25.09.2018. The petitioner appears to have made a quantification of Rs.1,98,86,089/- in a reply dated 24.10.2018 and agreed to pay service tax due towards Erection, Commissioning, and Installation Service and Works Contract Service for the period between April 2017 to June 2017 153. The petitioner in W.P.No.11785 of 2020, by a reply dated 24.10.2018, has given the details of "tax dues" as follows:- Out put Tax Input Tax Total tax payable Erection & C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned copy of the statement of payment not received from your customer. 157. These documents have not been furnished by the petitioner. The audit was later completed and the petitioner has received a Show Cause Notice dated 26.02.2022 bearing ReferenceNo.06/2020(ADC) C.No.V/15/ST/46/2019-Audit-II since the rejection of their applications on 09.11.2019 and on 13.01.2020. 158. As per the petitioner in W.P.No.11785 of 2020, the tax quantified was Rs.1,98,86,089/- on 24.10.2018 for the period from April 2017 to June 2017. While the quantification for the corresponding period in the Show Cause Notice dated 26.02.2020 is only Rs.1,94,15,715/-, which is less than what the petitioner has quantified, the entire tax due from the said petitioner was Rs.2,98,27,857/- (without including interest of Rs.56,06,373/-) for the period between March, 2016 and June, 2017. 159. Of the aforesaid quantified sum ofRs.1,98,86,089/-, the petitioner claims to have paid a sum of Rs.1,71,47,330/- (Rs.1,60,51,759 + input tax liability of Rs.10,95,571/-) in cash before the audit and partly during the course of the audit, and before the implementation of SVLDRS, 2019 with effect from 01.09.2019. A sum of Rs.5,00, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Central Board of Indirect Taxes and Customs (CBIC) clarifying what is meant by quantification, but the same cannot be applied to the facts of the present case. 165. The decisions of other High Courts cannot therefore be applied to the facts of the present case. In fact, we are not going to follow any of the decisions rendered in other cases as each case has to be decided on the strengths and weaknesses of the facts as presented. 166. As per Rule 3 of the SVLDRS Rules, 2019, a person is entitled to make multiple declarations in respect of the case as defined in explanation to the aforesaid Rule. A reading of the above facts indicate that there is only a proper quantification for a sum of Rs.1,98,86,089/- for the period between April 2017 to June 2017. Thus, at best the petitioner is entitled to settle for the period from April 2017 to June 2017 alone. The show cause proceedings initiated subsequently on 26.02.2020 cannot be scuttled by the petitioner for demands made earlier starting from March 2016 to June 2017. To that extent, the petitioner is not entitled to settle the case. W.P.No. 12957 of 2020 167. We shall now take up W.P.No.12957 of 2020. 168. The petitioner has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Year Service Tax Quantified by the petitioner in reply dated 7.5.2019 (A) Service Tax Quantified by inquiry in the SCN dated 25.09.2020 (B) Difference (C)=(B-C) (C) 1. TDR (Transfer of Development Rights) 2014-15 to 2016-17 1,98,95,974 2,38,28,462 39,32,488 2. Construction Service provided to M/s. Army Welfare Housing Organisation (AWHO) for 2014-15 to 2017-18 (upto June 2017) 6,60,92,863 6,97,11,477 36,18,614 3. Regular Service Tax collected and not paid for 2014-15 to 2017-18 (upto June 2017) 28,49,01,991 28,49,01,991 Total 37,08,90,828 37,84,41,930 75,51,102 176. A reading of the Show Cause Notice issued to the petitioner and the above charts reveal that the petitioner has disputed that it was not liable to pay service tax on a part of the service tax demanded towards Transfer of Development Right (TDR) and construction services provided to M/s. Army Welfare Housing Organisation (AWHO) alone. 177. The aforesaid sum of Rs.37,08,90,328/- quantified by the petitioner on 07.05.2019 in response to the summons dated 23.04.2019 covers the purported liability of the petitioner for the period between 2014-15 to June 2017 as against Rs.37,84,41,930/- as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed tax liability of Rs.37,08,90,828/-, the petitioner has purportedly paid a sum of Rs.23,84,58,634/- partly through cash for a sum of Rs.12,31,98,712/- and the balance through Cenvat account for a sum of Rs.11,52,59,922/-. 182. A reading of the show cause notice also indicates that for the period from April 2014 to December 2019 a sum of Rs.12,54,89,142/was paid in cash and the balance of Rs.11,54,69,555/- was paid through Cenvat account which is disputed by the Department. 183. The above quantification of tax liability is before the commencement of investigation by DGGI on 23.04.2019. 184. The petitioner has made a partial quantification of the tax liability. Only a sum of Rs.75,51,102/- on account of TDR and services rendered to AWHO as detailed above in the Table was not quantified either in the ST-3 Returns and/or in the letter dated 7.5.2019 before the implementation of SVLDRS,2019. 185. However, it would not disentitle the petitioner from the purview of SVLDRS, 2019 for the amount remaining unpaid as per the admission in the ST-3 Returns prior to the implementation of SVLDRS, 2019. 186. An overall reading of the facts indicate that the returns filed by the petitioner fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foresaid show cause notice and pass order within a period of 90 days from the date of receipt of a copy of this order or within 90 days of corrigendum. iv. Needless to state, the petitioner shall be heard before orders are passed in the aforesaid show cause proceeding. W.P.No.12957 of 2020 i.W.P.No.12957 of 2020 is allowed by directing the respondents to accept the declaration filed under SVLDRS, 2019 for the tax dues, determined and quantified by the petitioner as payable for the period between 2014-15 to 2017-18 (upto June 2017) by accepting the Declaration in Form SVLDRS-I filed by the petitioner on 31.12.2019 and settle the case by issuing appropriate discharge certificate in accordance with the provisions of SVLDRS, 2019 to the extent there was a quantification on 7.5.2019 for the amount of tax due that had remained unpaid before the implantation of SVLDRS,2019 within a period of 30 days from the date of receipt of a copy of this order. ii. For the balance amount covered by the Show Cause Notice No.47 of 2020 dated 25.09.2020 issued by the Principal Additional Director General, Directorate General of Goods and Service Tax Intelligence, the Principal Additional Director Gen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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