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2014 (9) TMI 879 - HC - Service TaxService Tax Voluntary Compliance Encouragement Scheme - Person who may make declaration of tax dues - Assessee filed declaration under Service Tax Voluntary Compliance Encouragement Scheme - Department rejected said declaration on ground that for period from 1-10-2004 to 31-3-2009, a notice under section 73 dated 19-3-2010 had culminated into an order dated 23-12-2010 and since issue in question was already covered by said notice/order, no declaration could be filed for subsequent/coinciding period 1-10-2007 to 31-12-2012 in view of second proviso to section 106(1) - Held that:- the contention of the counsel for the petitioner has been that in the show-cause notice dated 19/03/2010 culminating in the order dated 23/12/2010, there was no invocation of Section 73A of the Act and therefore the proviso does not apply in the instant case, but the impugned order does not take into consideration that aspect of the matter. There is considerable force in the aforesaid submission inasmuch as the findings given in the order dated 23/12/2010 prima facie was with regard to Section 73 of the Act and not Section 73A. But the matter does not rest here. The other aspect of the matter is, one of the reasons given in the impugned order was that the earlier show-cause notice and the order dated 23/12/2010 was for the period October 2004 to March 2009, part of which period is covered under the Scheme, which was from 01/10/2007 up to 31/12/2012. It was reasoned by the respondent officer that for the period October 2007 to March 2009, there was already an order passed on 23/12/2010 and therefore, the petitioner was not entitled to file the application under the Scheme. That reason is not correct in view of the fact that the period for tax dues is 01/10/2007 up to 31/12/2012. That period cannot be related to any period in respect of which an order has been passed by the authority under Section 73 of the Act. If there were any dues between the aforesaid dates, then the eligibility to file the application under the Scheme would arise provided no order was passed prior to the enforcement of the Scheme on any issue. Therefore, linking the period of tax dues under the Scheme with the period in respect of which the order dated 23/12/2012 has been passed in petitioner's case is not correct as that order was prima facie not in respect of Section 73A of the Act Commissioner Service Tax to reconsider the issue in light of whether the earlier show-cause notice dated 19/03/2010 culminating in the order dated 23/12/2010 in respect of which certain issues arose are the very same issues which have arisen for the subsequent period namely, April 2012 to December 2012 in respect of which, the petitioner seeks benefit under the Scheme. - Matter remanded back - Decided in favour of assessee.
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