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TMI Blog2025 (4) TMI 667X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of the Writ Petition 1. 126/2015 dated 16.10.2015 2010-2011 to 2014-2015 Dropped. No need to include the fees and air ticket charges. Relied on SC decision in intercontinental consultants and Technocrats Private Limited Vs. Union of India reported in 2018 [10] G.S.T.L.401 [SC]. 2. 13/2018 dated 13.04.2018 2015-2016 to 2016-2017 Statutory fees, air tickets even if collected at actual and paid to the respective authorities are chargeable to service tax. Before CESTAT, Chennai. 4. The dispute in the present case relates to the amount covered by the Statement of Demand No.08/2020 dated 03.12.2020 which covers the period from April 2017 to June 2017. The Petitioner had earlier filed Return under Form ST-3 on 05.06.2018 for the aforesaid period. The Petitioner, however failed to pay the tax admitted in the aforesaid return. 5. During the interregnum, the Parliament had enacted SABKA VISHWAS (Legacy Dispute Resolution) Scheme, 2019 [hereinafter referred to as the 'Scheme'] vide Chapter V, Sections 120 to 135 of the Finance Act (No.2) Act, 2019. The said Scheme came into effect from 01.08.2019. 6. Having filed the Return in Form ST-3 on 05.06.2018, the Petitioner t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and the provisions of the Scheme and the Rules made thereunder. 15. The undisputed facts of the case are that the Petitioner had filed the Return in Form ST-3 on 05.06.2018 for the period between April and June 2020. In the aforesaid Return, the Petitioner had declared a gross receipt of Rs. 2,17,81,568/-. 16. On the aforesaid gross receipt of Rs. 2,17,81,568/-, the petitioner claimed a deduction of Rs. 2,04,51,868/- under Rule 5(2) of the Service Tax (Determination of Value) Rules, 2006 as a "pure agent". Thus, the Petitioner admitted to a tax liability of Rs. 1,86,158/- in the ST-3 Return dated 05.06.2018 on the taxable value of Rs. 13,29,700/- [Rs.2,17,81,568/- - Rs. 2,04,51,868/-] 17. However, in the Declaration that was filed by the Petitioner in Form SVLDRS-1 on 13.01.2020, the Petitioner has declared the tax due in ST-3 Return dated 05.06.2018 as Rs. 74,266/- and on the same, claimed 60% abatement and offered to pay Rs. 29,706/-. In the aforesaid Declaration in Form SVLDRS-1, the Petitioner has stated that the Declaration was filed under "arrears category". 18. The aforesaid Declaration was acknowledged in Form SVLDRS-2 on 25.01.2020. In both Form SVLDRS-1 and Form SV ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pre-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. Section 125. Declaration under Scheme.- (1) All persons shall be eligible to make a declaration under this Scheme except the following, namely:- (a) ...... (b) ...... (c) ...... (d) ...... (e) ...... (f) a person making a voluntary disclosure,- i. ..... 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) ...... (h) ...... (2) A declaration under sub-section (1) shall be made in such electronic form as may be prescribed. 23. As per Section 123(d) of the Scheme, the "tax due" is the total amount of duty stated in the Declaration where the amount has been voluntarily disclosed by the Declarant. As per Section 123(e) of the Scheme, the "tax due" is the "amount in arrears" relating to the Declarant. 24. The expression "tax dues" has been defined in Section 123 of the Scheme as under:- "123. Tax dues.- For the purposes of the Scheme, "tax dues" means- (a) Where - i. a single a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payable by the declarant in the said notice. Provided that if the said notice has been issued to the declarant and other persons making them jointly and severally liable for an amount, then, the amount indicated in the said notice as jointly and severally payable shall be taken to be the amount of duty payable by the declarant. (c) where an enquiry or investigation or audit is pending against the declarant, the amount of duty payable under any of the indirect tax enactment which has been quantified on or before 30th day of June, 2019. (d) where the amount has been voluntarily disclosed by the declarant, then, the total amount of duty stated in the declaration. (e) where an amount in arrears relating to the declarant is due, the amount in arrears." 25. Though there is an apparent contradiction between the relief that is available to a Declarant under Section 124(1)(c)(i) and an embargo under Section 125(1)(f)(ii) of the Scheme, it has to be reconciled between those cases "where Returns have been filed" and those cases "where no Returns have been filed". 26. Thus, there is an embargo if a disclosure is made voluntarily where no Return is filed before 30.06.2019, no abateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 29,706/- on 40% of Rs. 74,266/-. 32. Thus, the Petitioner has jettisoned the admitted "amount in arrears" in ST-3 Return filed on 05.06.2018. In other words, the Declaration in Form SVLDRS-1 dated 13.01.2020 can be treated under the category of "voluntary disclosure". 33. Section 125 of the Scheme contains several exceptions. Exception under Section 125(1)(f)(ii) of the Scheme is relevant for this case. As per the aforesaid exception, a Declarant is not entitled to make a Declaration under the category of "voluntary disclosure" under the Scheme after having filed a Return under the Indirect Tax Enactment after indicating the amount of duty/tax that was payable in the Returns but was not paid as per the Returns. Thus, the Petitioner was not entitled to avail the benefit of the Scheme. 34. A Declaration could not have been filed in view of restrictions contained in Section 125(1) of the Scheme. A "voluntary disclosure" could have been permitted, provided there was no quantification of the amount of duty on or before 30.06.2019 as is contemplated under Section 12591)(e) of the Scheme. 35. Where ST-3 return has been filed and the amount has been declared in the ST-3 return but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Discharge Certificate, it shall be presumed as if the declaration was never made and proceedings under the applicable indirect tax enactment shall be instituted. 41. Sub-section (1) and sub-section (2) to Section 129 of the Scheme are reproduced below for the sake of clarity in the following Table:- Section 129(1) of the Scheme Section 129(2) of the Scheme Section 129. Issue of Discharge Certificate to be conclusive of matter and time period.- (1) Every Discharge Certificate issued under Section 126 with respect to the amount payable under this Scheme shall be conclusive as to the matter and time period stated therein, and- (a) the declarant shall not be liable to pay any further duty, interest, or penalty with respect to the matter and time period covered in the declaration; (b) the declarant shall not be liable to be prosecuted under the indirect tax enactment with respect to the matter and time period covered in the declaration; (c) no matter and time period covered by such declaration shall be reopened in any other proceeding under the indirect tax enactment. Section 129. Issue of Discharge Certificate to be conclusive of matter and time period.- (1) ..... (2) N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is based on the Declaration filed. The benefit of Scheme cannot be altered merely because the Declaration filed by an Assessee was under the wrong category. In this connection,latin phrase Nullus Commodum Capere Potest De Injuria Sua Propria is referred to as per which 'no one can take advantage of his own wrong'. 46. Since the incorrect particulars were furnished by the Petitioner in Form SVLDRS-1 dated 13.01.2020 and the Declaration filed was not to be entertained, the Department was entitled to invoke power under Section 129(2)(c) of the Scheme as per which, in case of a "voluntary disclosure" where any material particulars furnished in the Declaration is subsequently found to be false, within a period of one year of issue of the Discharge Certificate, it shall be presumed that the Declaration was never made and the proceeding under the applicable indirect tax enactment shall be instituted. 47. Since the Impugned Order-in-Original No.23/2022-Adj dated 30.03.2022 bearing Reference C.No.IV/16/167/2015-Adj [ST0304] has been passed by the 1st Respondent, at best, liberty can be given to the Petitioner to file a Statutory Appeal before the Appellate Commissioner under the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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