9911796707
TMI Blog2008 (10) TMI 248X X X X Extracts X X X X X X X X Extracts X X X X ..... im interest on the said amount viz., ₹ 50,00,000/- and ₹ 1,00,00,000/- from the dates when they were made i.e. 2-8-1994 and 3-8-1994 respectively. Admittedly, the finding in respect of the applicability of the Scheme to the petitioner was not questioned by the Revenue in the said writ Appeal. The provisions of Section 87(m)(ii)(b) of the Act could be pressed into service only in respect of the amount remaining unpaid pursuant to the demand made by the revenue and what ever the amount paid prior to the show cause notices or demand notices cannot be considered to be one of the amount paid after assessing the indirect tax arrear to be paid by the assessee viz., the writ petitioner, in these circumstances, we are of the considered view that there is no infirmity in the finding of the learned single Judge and consequently allowing the writ petitions. - 2244-2252 of 2003 - - - Dated:- 13-10-2008 - D. Murugesan and V. Periya Karuppiah, JJ. [Judgment per : D. Murugesan, J.]. - These writ Appeals are at the instance of Union of India, represented by its Secretary, Ministry of Finance, Department of Revenue against the Order of the learned single Judge of this Court dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 12-3-2003. The learned single Judge found that in as much as the amount of Rs. 1,50,00,000/- made even before the demand or show cause notices were issued, the explanation to Section 87(m)(ii)(b) of The Finance Act, 1998, cannot be made applicable to exclude the petitioner from the benefit of the Scheme. Insofar as the challenge as to the final adjudication, the learned Judge held that in as much as the petitioner is entitled to the benefit of the scheme, the final adjudication proceedings is also to be set aside. Accordingly, the orders impugned in W.P. No. 4932 of 1999 was also set aside. Aggrieved by the above common order, the present appeals have been filed by the Union of India. 4. We have heard Mr. K. Gunasekar, Senior Central Government Standing Counsel for appellants and Mr. Habibulah Basha, Senior Counsel for Mr. S. Dhayaleswaran, learned counsel on record for the respondent. 5. The learned Mr. K. Gunasekar, Standing Counsel representing on behalf of the appellants would submit that a perusal of Section 87(m)(ii)(b) of the Finance Act, 1998 coupled with the explanation would go to show that even if an amount representing duty is paid in respect of the subject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Samadhan Scheme in terms of Section 87(m)(ii)(b) of the Act. The said provision reads as under :- "87. Definitions. - In this Scheme, unless the context otherwise requires, - (m) "tax arrear" means (i) in relation to direct tax enactment, the amount of tax, penalty or interest determined on or before the 31st day of March, 1998 under that enactment in respect of an assessment year as modified consequence of giving effect to an appellate order but remaining unpaid on the date of declaration; (ii) in relation to in direct tax enactment :- (a) the amount of duties (including drawback of duty, credit of duty or any amount representing duty) cesses, interest, fine or penalty determined as due or payable under that enactment as on the 31st day of March, 1998 but remaining unpaid as on the date of making a declaration under Section 88; or (b) the amount of duties (including drawback of duty, credit of duty or any amount representing duty), cesses, interest, fine or penalty which constitutes the subject matter of a demand notice or a show cause notice issued on or before the 31st day of March, 1998 under that enactment but remaining unpaid on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (f) of the Finance Act, 1998, in our considered view would show that only those payments made either voluntarily or under protest, pursuant to the demand notice or show cause notice would alone be brought under the explanation to the above provisions of the Act. 10. In this context, we may also refer that the provisions of Section 95 of the Act itself contemplates that the scheme shall not apply in certain cases, it is not the case of the revenue department that the petitioner will come under any of the categories as enumerated under Section 95 of the Act to disentitle the assessee from claiming the benefit of the Scheme. That apart, as rightly contended by the learned senior counsel appearing for the petitioner that a sum of Rs. 58,37,630/- (Rs. 1,50,00,000/- less Rs. 91,62,370/- ) had already been adjusted in Kar Vivad Samadhan Scheme in respect of certain other transactions made by the petitioner. This is evident from the proceedings of the Commissioner of Customs, Customs House, Chennai dated 26-3-1999 which reads as under :- Office of the Commissioner of Customs, Custom House, Chennai-1 File No. Smisc 15-6-99 dated 26 March, 1999 M/s. Goyals Dresses, No. 3, Vdyaragha ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
