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TMI Blog2023 (4) TMI 964X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 174 of the CGST Act, it is clear that the obligation of the petitioner to pay the service tax due in respect of the Financial Years 2014-15 to 2017-18 (April June) is not affected in any manner by the omission of Chapter-V of the Finance Act by enactment of Section 173 of the CGST Act. In VIANAAR HOMES PRIVATE LIMITED VERSUS ASSISTANT COMMISSIONER (CIRCLE-12) , CENTRAL GOODS SERVICES TAX, AUDIT-II, DELHI ORS. [ 2020 (11) TMI 150 - DELHI HIGH COURT] , this Court had rejected the contention that Rule 5A of the Service Tax Rules, 1994 did not survive the omission of Chapter V of the Finance Act in respect of the period prior to the enactment of the CGST Act. Any legal proceeding for enforcement of a right would be unaffected by the repeal of the statute. However, any hope or expectation of acquiring a right under a repealed provision may be affected. In the present case, there is no dispute that the impugned SCN was issued in exercise of the duty to ensure compliance with the provisions of Chapter-V of the Finance Act. As stated above, the petitioner has an obligation to correctly pay the service tax under Chapter-V of the Finance Act and the proceedings initiat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by issuance of the impugned SCN and the impugned letters are not saved under Section 174 of the CGST Act. 4. At the outset, it is relevant to refer to Section 173 and Sub-sections (1), (2) and (3) of Section 174 of the CGST Act; the same set out below: 173. Amendment of Act 32 of 1994. Save as otherwise provided in this Act, Chapter V of the Finance Act, 1994 shall be omitted. 174. Repeal and saving. (1) Save as otherwise provided in this Act, on and from the date of commencement of this Act, the Central Excise Act, 1944 (1 of 1944) (except as respects goods included in entry 84 of the Union List of the Seventh Schedule to the Constitution), the Medicinal and Toilet Preparations (Excise Duties) Act, 1955 (16 of 1955), the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957), the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978), and the Central Excise Tariff Act, 1985 (5 of 1986) (hereafter referred to as the repealed Acts) are hereby repealed. (2) The repeal of the said Acts and the amendment of the Finance Act, 1994 (32 of 1994) (hereafter referred to as such amendment or amended Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Finance Act by omission of Chapter-V of the Finance Act would not affect the operation of the amended Act (Finance Act) and it would also not affect any obligation or liability accrued or incurred under the Finance Act. 6. Clause (d) of Section 174(2) of the CGST Act also expressly provides that the amendment to the Finance Act would not affect any duty, tax, surcharge, fine, penalty or interest as due or may become due under the amended Act. Thus, on a plain reading of Section 174 of the CGST Act, it is clear that the obligation of the petitioner to pay the service tax due in respect of the Financial Years 2014-15 to 2017-18 (April June) is not affected in any manner by the omission of Chapter-V of the Finance Act by enactment of Section 173 of the CGST Act. 7. The said issue is also covered by the decisions of the Coordinate Bench of this Court in Aargus Global Logistics Pvt. Ltd. v. Union of India Anr.: (2020) 83 GSTR 400 and Vianaar Homes Pvt. Ltd. v. Assistant Commissioner (Circle-12), Central Goods Services Tax, Audit-II, Delhi Ors.: W.P.(C) No.2245/2020, decided on 03.11.2020. 8. In Aargus Global Logistics Pvt. Ltd.(supra), this Court had o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me when, inter alia, the said Chapter V of the Finance Act was omitted and CGST Act was enacted, would go un-investigated without the violators of the law being brought to justice. That, in our view, was clearly not the intent and there is nothing to show that the Parliament intended to grant blanket immunity to all assessees whose past acts and omissions may, otherwise, fall foul of the provisions of, inter alia, Chapter V of Finance Act, 1994. On the contrary, it is clear to us that the intention of the Parliament was clearly to save not only ongoing investigation, inquiry, verification etc. but also to specifically enable the initiation of fresh investigation, inquiry verification etc. in respect of acts and omissions relating to inter alia, the erstwhile service tax regime. 9. In Vianaar Homes Pvt. Ltd. (supra), this Court had rejected the contention that Rule 5A of the Service Tax Rules, 1994 did not survive the omission of Chapter V of the Finance Act in respect of the period prior to the enactment of the CGST Act. 10. Mr. Sanjeev Anand, learned senior counsel appearing for the petitioner earnestly contended that the said decisions did not address the important aspect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bility incurred under the provisions of the said 1955 Act. 11. On the strength of the said decision in Bansidhar Ors. (supra), Mr. Anand contended that there was no accrued right in favour of the State under Chapter-V of the Finance Act as there were no proceedings pending under the said Act on 01.07.2017. 12. The said aforesaid contention is insubstantial. The understanding that any right for recovery of service tax would accrue to the State only on initiation of proceedings is erroneous. The petitioner, as an assessee, had the obligation to pay the correct service tax as due under Chapter-V of the Finance Act. This obligation was crystallized prior to the enactment of the CGST Act and this obligation and a corresponding duty for the authorities to initiate proceedings for the enforcement of the said obligations would survive the omission of Chapter-V of the Finance Act. 13. As noted above, Mr. Anand also referred to the decision in the case of State of Odisha Anr. (supra) and drew the attention of this Court to paragraph 30 of the said decision which is set out below: 30. The provisions contained in Section 6 of the General Clauses Act stipulate that by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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