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TMI Blog2023 (2) TMI 611X X X X Extracts X X X X X X X X Extracts X X X X ..... order or direction to quash the impugned provision of law contained in Section 124(2) and that contained in Section 130(2) of the Act as ultra vires, illegal and unconstitutional. 2. The petitioner is an assessee under the erstwhile service tax regime being a company engaged in providing services in the oil and gas sector. The Service Tax Department requisitioned the month wise data/figure from the petitioner for the period 01.04.2013 to 31.03.2014 in relation to equipment lost. During the course of enquiry, petitioner paid an amount of Rs.4 lakhs on 06.02.2015. The petitioner faced similar enquiry for subsequent financial years as well and was served with show cause notices qua evasion of service tax. The details of the same are as under:- SCN Details Period Involved Service tax demanded 27/ST/Div-16/ 2015-16 dated October 14, 2015 ("SCN 1") April 01, 2013-March 31, 2014 INR 7,64,64,303 32/ST/2015-16 dated March 31, 2016 ("SCN 2") April 01, 2014-March 31, 2015 INR 4,39,15,018 07/ST/Div-XVI/2017-18 dated March 26, 2017 ("SCN 3") April 01, 2015-March 31, 2016 INR 7,94,89,780 05/Div-East-1/2019-20/84 dated April 09, 2019 ("SCN 4") April 01, 2016- June 30, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... similarly situated persons. While dealing with the notification issued under the taxation statute, Apex Court held that the notification has to apply to the entire class and the Government cannot create subclassification thereby excluding one sub-category, even when both the same categories are of same genus. He further submits that retention of money other than pre-deposit by the Government by resorting to the provision contained in Section 124(2) and those contained in Section 130(2) shall amount to collecting an amount over and above the computed tax liability which will be without authority of law, hence illegal. 7. In the written statement filed by Union of India, it has been claimed that the scheme contained in the Act is a one time measure for liquidation of past disputes arising out of Central Excise and Service Tax and also to ensure disclosure of unpaid taxes by a person eligible to make the declaration. It has been further claimed that as per settled proposition of law, the legislature enjoys wide latitude in taxation statutes and the same should not be subjected to the minute gravities of Article 14 of the Constitution of India. The scheme has been framed in order to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that if the amount of predeposit 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 refund. 130. (1) Any amount paid under this Scheme,- (a) shall not be paid through the input 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 predeposit or other deposit already paid exceeds the amount payable as indicated in the statement of the designated committee, the difference shall not be refunded." 10. A bare perusal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of undisclosed evaded taxes with an intent to end old or pending indirect tax disputes. 14. As per settled law statutes are not to be construed as theorems of Euclid but with some imagination of the purpose which lie behind them. The interpretation cannot be too literal in meaning of words that it misses the soul and sees the skin only. With respect to the fiscal statutes, it is trite law that the tests of vice of discrimination in the taxating law is less rigorous. Reference can be made to the observations made by the Apex Court in Federation of Hotel & Restaurant Association of India vs. Union of India (1989) 3 SCC 634, wherein Apex Court held that:- "xx xx xx 46. It is now well settled though taxing laws are not outside Article 14, however, having regard to the wide variety of diverse economic criteria that go into the formulation of a fiscal-policy legislature enjoys a wide latitude in the matter of selection of persons, subject-matter, events, etc., for taxation. The tests of the vice of discrimination in a taxing law are, accordingly, less rigorous. In examining the allegations of a hostile, discriminatory treatment what is looked into is not its phraseology, but the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not single them out for harsh treatment. Advantages or disadvantages to individual assesses are accidental and inevitable and are inherent in every taxing Statute as it has to draw a line somewhere and some cases necessarily fall on the other side of the line." 16. We find that the provisions contained in Sections 124 and 130 of the Act have close nexus and are in consonance with the objective sought to be achieved by the legislature in enacting the Act. The object sought to be achieved is to end the disputes without creating liabilities. Legislature in its own wisdom in order to achieve the objective of encashing the disputes has reiterated the underlying condition i.e. no refund has to be granted. The scheme is optional. The petitioner is under no obligation to opt for the same. Petitioner may opt after weighing benefits or may opt to continue with pending appeal. The argument raised by senior counsel for the petitioner that the same will be discriminatory to the petitioner as the assessee who has not deposited more than the pre-deposit will have a march over an assessee like petitioner who has deposited more than pre-deposit is misconceived. If the said argument is stretched f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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