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TMI Blog2024 (12) TMI 469X X X X Extracts X X X X X X X X Extracts X X X X ..... the declarant, as indicated in the statement issued by the designated committee, the declarant shall not be entitled to any refund. The findings recorded in the impugned order on the date of the petitioner has used CENVAT Credit for payment of output service tax liability have not been disproved by the petitioner. It is also important to note that in the Service Tax Return in Part-D dealing with service tax paid in cash and through CENVAT Credit, against every month, the assessee has shown in D-1 as having made payment in cash. Similarly, every month (2016-17), the petitioner in D-2 stated how much CENVAT Credit they had utilised to pay the service tax - Insofar as cash payment is concerned, the petitioner and respondent accept that it was paid before 11 December 2018. Still, regarding CENVAT Credit from the return itself, the petitioner is now disputing the month and year in which the CENVAT Credit was used to make the payment. The petitioner has not shown any legal provision or document to prove that the CENVAT Credit was utilised after 2018. The easiest and only way for the petitioner was to produce the relevant documents, which would have dislodged the respondent's contenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Scheme contained in Chapter V of the Finance Act, 1994 and stressed on Section 124 (2) which provides that the relief available to a declarant under the Scheme should be calculated under sub-section 1 and the same shall be subject to the condition that any amount paid as pre-deposit at any stage of the appellate proceedings under the indirect text 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 pre-deposit 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. 5. Mr Raichandani submitted in the present case, admittedly, the enquiry or investigation commenced on 11 December 2018. He referred us to the impugned order in which it is stated that the enquiry/investigations are still ongoing. He then submitted that the petitioner paid Rs. 3,27,81,964/- through the CENVAT account vide returns filed on 31 December 2019. He, therefore, submitted that since this amount was paid after the commencement o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... availment and utilisation of the credit. He submitted that even the returns were filed after three years, and a false case is tried to be portrayed as if the date of filing of the return corresponds to the date of actual debits or utilisation of credits. Accordingly, he submitted that there is no error in the impugned order or the demand content therein that should warrant interference by this Court. 11. Mr Mishra submitted that the petition involves disputed calculations and the ascertainment of precise dates on which the CENVAT credit was availed and utilised. He also submitted that the petitioner suppressed material documents and did not produce such documents despite requests and opportunities. He concluded that the amount determined is entirely consistent with the Scheme s sections. 12. Mr Mishra submitted that this Court s order dated 28 January 2021 in Writ Petition (L) No. 3135 of 2020 clarifies that the determination was set aside for failure of natural justice. The matter was remanded by leaving all contentions of all parties open. He, therefore, submitted that the argument about limited remand is incorrect. In any event, he submitted that the respondents had not travelle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being Input Credit utilised was made. If that be so, then the petitioner's contention that CENVAT Credit was utilised on the date of filing the return, i.e. 31 December 2019 is incorrect. We have addressed this issue because the petitioner has taken self-contradictory stands when caught on the wrong foot. 20. The petitioner's changing stands on the payment date through the CENVAT Credit Ledger is reason enough not to interfere with the impugned determination. Such mindless but self-serving shifting was without realising they were being caught making untrue and false statements at every step. The advantage of speaking the truth is that one does not have to remember what was said in the past. A litigant with such an approach should not expect equitable relief by invoking extraordinary jurisdiction of this Court. 21. The verification clause in the declaration filed by the petitioner categorically certified that the information given was correct and that the amount of tax dues and other particulars shown therein were truly stated. The object of the Scheme is to allow coming clean on past non-compliances/violations/disputes, but that does not give the declarant/petitioner to ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no relief shall be available with respect to tax dues. (2) The relief calculated under sub-section (1) shall be subject to the condition that any amount paid as pre-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 pre-deposit 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. 24. In terms of Section 124 (2), the relief calculated under sub-section (1) shall be subject to the condition that any amount paid as pre-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 pre-deposit or deposit already paid by the declarant exceeds the amount payable by the declarant, as indicated in the statement issued by the designated committee, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 2018. Even the respondents gave the Petitioner sufficient opportunity to prove this crucial aspect. The onus squarely lay on the petitioner, which the petitioner has miserably failed to discharge in the present case. Changing stances from time to time also does not help the petitioner s case. 30. Mr Raichandani referred to the CENVAT Credit Rules, which state that service tax must be paid by the 5th or 6th day of each month. There are rules for filing periodic returns. Mr Raichandani, however, submitted that the petitioner may have breached these Rules, but as long as a return was filed after payment of the late fee, this circumstance could not be held against the petitioner. We cannot agree. 31. The circumstance that no timely returns were filed, coupled with the non-production of credit ledgers despite repeated opportunities, entitles the respondents to draw an adverse inference that there was availment and utilisation of credit before 06 February 2019. In exercising our summary and extraordinary jurisdiction, we cannot be expected to rove through the petitioner's accounts (which the Petitioner failed to produce) and then accept the petitioner's contention. 32. The fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CENVAT credit ledger or any other document to show that these dates were wrong. Therefore, we cannot accept this submission of the petitioner. 36. The interpretation of Rules 5 and 6 of the Service Tax Rules also does not support the petitioner's case. The rules militate against the petitioner s contention. Based on the rules, an adverse inference could be drawn against the petitioner. The petitioner, having failed to produce or show any credible material, cannot now urge that the Petitioner may have breached the rules; still, since the petitioner has filed belated returns with a late fee, it should be presumed that the credit was availed and utilised on the filing date. The petitioner cannot expect some premium for having breached the rules. 37. No credible material supports the Petitioner s case about payment before 06 February 2019 or 11 December 2018. Factors like late filing of returns, ambiguity in the returns, and misstatements in the declaration add up and support the respondents' conclusion. Based on a cumulative consideration of all these factors, we do not think the respondents have erred in their calculations or misconstrued the Scheme's provisions. 38. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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