9911796707
TMI Blog2024 (12) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... ections under Article 226 of the Constitution of India ordering and directing the Respondents to forthwith accept the declaration in Form SVLDRS 1 under ARN No. LD1611190000276 dated 16/11/2019 filed by the Petitioner and further directing Respondents their servants and agents to issue discharge certificate under section 127 of the Scheme;" 3. On 21 October 2016, the Petitioners were served with a show cause notice requiring the Petitioners to show cause why specific amounts be not recovered from the Petitioners. Based upon the same, an Order-in-Original (O-I-O) was passed on 4 February 2019, demanding from the Petitioners an amount of Rs. 1,03,16,150/- towards credit which was incorrectly availed and utilised; Rs. 3,68,36,058/- towards service tax inclusive of education cess and secondary and higher education cess; and Rs. 8,47,842/- towards service tax under reverse-charge on receipt of services of transport of goods by road. The aggregate of these three amounts works out to Rs. 4,80,00,050/- 4. The Petitioners appealed against the O-I-O dated 4 February 2019 before the Customs Excise and Service Tax Appellate Tribunal (CESTAT), and such appeal is pending adjudication. 5. On 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion of considering the said amount of Rs. 1,03,16,150/- for determining tax dues. He submitted that this CENVAT Credit could have been reversed at the highest and, according to him, has been reversed. 11. Mr. Shrivastava submitted that tax dues, without prejudice to the Petitioners' contentions, should, therefore, have been determined at Rs. 3,68,36,058/- + Rs. 8,47,842/- = Rs.3,76,83,900/- and not Rs. 4,80,00,050/-. He submitted that the Petitioners were always ready and willing to pay 50% of this amount after reducing the pre-deposited amount consistent with the Scheme. He submitted that the denial of this benefit, in the circumstances of this case, is arbitrary and is, in fact, contrary to the SVLDR Scheme. 12. Mr. Shrivastava referred to the definition of "amount of duty" under clause 2(d) of the Scheme and pointed out that it does not cover input credit availed but not utilised. He also referred to clauses 123 and 124 of the Scheme and, based on them, submitted that the inclusion of Rs. 1,03,16,150/- was patently erroneous, and the amount of tax due should have been determined by excluding the said amount. 13. Mr. Sharma and Mr. Ochani countered Mr. Shrivastava's submissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not eligible for the entire Cenvat credit of Rs. 1,03,16,150/- wrongly availed and utilized by them. The irregular credit taken and utilised is therefore liable to be disallowed and recovered from them along with interest under proviso to section 73(1) read with Section 75 of the Finance Act, 1994 read with Rule 14 of the Cenvat Credit Rules, 2004. They are also liable for penal action under Section 78 of the Finance Act, 1994 read with Rule 15(4)/ 15(3) of the Cenvat Credit Rules, 2004. [Emphasis supplied] 17. At this stage, we cannot decide whether the findings and observations in the O-I-O dated 4 February 2019 are correct. For that, the Petitioners have already instituted an appeal before CESTAT, which is said to be pending. However, the fact remains that in terms of the O-I- O, the taxes demanded from the Petitioners were Rs. 4,80,10,050/-, which includes Rs. 1,03,16,150/- being credit availed and utilised as per the O-I-O. 18. There is not much ambiguity about the amount demanded in the O-I-O. In any event, in the Petitioners' appeal memo before CESTAT against Columns 13, 14 and 24, the Petitioners have pleaded as follows:- 13 (i) Amount of tax, if any, demanded for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this was not a case of the credit being availed but not utilised, we cannot fault the calculations made by the Designated Committee and communicated to the Petitioners. The entire argument before us proceeded on the without-prejudice premise that the credit may have been wrongly availed, but the same was never utilised. This premise, at least for the purposes of determining the amount payable under the Scheme, is not correct. 22. The correctness of these contentions can also be tested in the pending appeal, but for the purposes of this Scheme, the Petitioners were required to proceed based on the total amount of duty disputed in the Appeal, which was Rs. 4,80,00,050/-, as stated above. Therefore, the Designated Committee, by referring to the provisions of the Scheme, determined the total amount of duty disputed in appeal, Rs. 4,80,00,050/-. Based on that and after making necessary adjustments for the pre-deposited amount, the Petitioners were called upon to deposit Rs. 38,21,796/- within the prescribed Period. Since this amount was not deposited within the specified period or even the extended period, we cannot say that the Respondents acted illegally or arbitrarily and interfere ..... X X X X Extracts X X X X X X X X Extracts X X X X
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