TMI Blog2024 (3) TMI 925X X X X Extracts X X X X X X X X Extracts X X X X ..... e settled in terms of Section 124(1)(a) of Chapter V of Finance Act, 2019 contrary under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019. Considering the fact that the petitioner was given a temporary relief by this Court while passing order dated 17.03.2020, the petitioner cannot be denied the benefit of Sabka Vishwas - (Legacy Dispute Resolution) Scheme, 2019 if the petitioner has complied with the said order by depositing Rs. 1,66,83,286/- within a period of two weeks as was ordered. The petitioner shall pay an amount of Rs. 33,36,656/- within a period of 30 days from the date of receipt of a copy of this order, provided the petitioner has paid a sum of Rs. 1,66,83,286/- as was ordered on 17.03.2020 - petitioner shall also pay the interest at 12% p.a. on the delayed payment of (Rs. 1,66,83,286/- and Rs. 33,36,656/-) Rs. 2,00,19,942/- from the date of expiry of 30 days from the receipt of Form SVLDRS-3 - In case, the petitioner had failed to pay the amount of Rs. 1,66,83,286/- as ordered on 17.03.2020 and fails to pay the amounts as ordered now, the benefit of Sabka Vishwas - (Legacy Dispute Resolution) Scheme, 2019 shall not be extended to the petitioner. Petition dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... X-003-COM-62-65/2016-17 dated 22.02.2017, the Commissioner of Service Tax III Commissionerate, Chennai-40 confirmed the amount of Rs. 3,37,48,486/- towards tax and Rs. 33,94,847/- towards penalty. 7. The petitioner claims to have invoked the powers under Section 74 of the Finance Act, 1994 to rectify the alleged mistakes in so far as demand proposed in SOD No.133/2014 dated 19.05.2014 and confirmed vide Order in Original No.CHN-SVTAX-003-COM-62 to 65-2016-17 dated 22.02.2017. 8. It is submitted that the petitioner thus did not file an appeal against the Order in Original No.CHN-SVTAX-003-COM-62 to 65-2016-17 dated 22.02.2017 under Section 86 of the Finance Act, 1994 before Customs Exercise and Service Tax Appellate Tribunal (CESTAT) as the application under Section 74 of the Finance Act for rectification was mistake pending before the Commissioner who passed Order in Original No.CHN-SVTAX-003-COM-62 to 65-2016-17 dated 22.02.2017. 9. In the written submission dated 09.11.2016 filed before the adjudicating authority, the petitioner pointed out that there are serious mistakes committed in quantifying the demand proposed in SOD No.133 of 2014 dated 19.05.2014. 10. It was submitted tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to pay only 50% of the tax due under Section 124(1)(a)(ii) of the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 and not 60% of amount confirmed in Order in Original 62 to 65/2016-17 in terms of Section 124(1)(c)(ii) of Chapter V of Finance Act, 2019. 17. In this connection, the learned counsel for the petitioner has placed reliance on the decision of the Hon ble Division Bench of the Bombay High Court in Ashwini Builders Developers Pvt.Ltd., vs. Asstt.Commr.C.Ex S.T.,Division-1, Satara, 2022(61)G.S.T.L.5 (Bom.). 18. The learned Senior Panel Counsel for the respondent on the other hand would submit that there are no authentic records to show that the petitioner had indeed filed a rectification application under Section 74 of the Finance Act, 1994 on 09.11.2016. 19. It is submitted that although the petitioner has stated that it had applied for Rectification of Mistake under Section 74 of the Finance Act, 1974 vide letter dated 07.06.2017, there are no records to show that the above application was indeed filed. It is submitted that a mere affixing of rubber stamp is not sufficient. 20. It is submitted that the subsequent reminder merely referred to application filed on 09 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 74 of the Finance Act, 1994 cannot be equated with an appear under Section 86 of the Finance Act, 1994. Pendency of the rectification application cannot be considered as the case in respect of which, one or more appeals arising out of such notice was pending as on 30.06.2019 . 27. An appeal would mean an appeal before an Appellate Authority . What was said to be pending before the Commissioner of Service Tax III, Commissionerate was an application for rectification under Section 74 of the Finance Act, 1994 and not an appeal under Section 86 of the Finance Act 1994. 28. An appellate remedy under Section 86 of the Finance Act, 1994 before the Appellate Authority is very different from a rectification proceeding under Section 74 of the Finance Act, 1994 before the same authority who passed the order. 29. The scope of appeal is different from a scope of application filed under Section 74 of the Finance Act, 1994. An application under Section 74 of the Finance Act, 1994 is for rectification of mistake for rectifying any mistake apparent from the record. 30. Where as, an appeal is a proceeding taken to rectify an erroneous decision of a authority by submitting the question t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceeding by way of appeal or revision relating to an order referred to in sub-section (1), the [Central Excise Officer] passing such order may, notwithstanding anything contained in any law for the time being in force, amend the order under that sub-section in relation to any matter other than the matter which has been so considered and decided. (3) Subject to the other provisions of this section, the Central Excise Officer concerned (a) may make an amendment under sub-section (1) of his own motion; or (b) shall make such amendment if any mistake is brought to his notice by the assessee or the Principal Commissioner of Central Excise or Commissioner of Central Excise or the Commissioner of Central Excise (Appeals). (4) An amendment, which has the effect of enhancing the liability of the assessee or reducing a refund, shall not be made under this section unless the Central Excise Officer concerned has given notice to the assessee of his intention so to do and has allowed the assessee a reasonable opportunity of being heard. (5) Where an amendment is made under this section, an order shall be passed in writing by the Central Excise Officer concerned. 6) Subject to the other provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the Appellate Tribunal against the order. Provided that where the Committee of Principal Chief Commissioners of Central Excise and Chief Commissioners of Central Excise differs in its opinion against the order of the Principal Commissioner of Central Excise or Commissioner of Central Excise], it shall state 29 the point or points on which it differs and make a reference to the Board which shall, after considering the facts of the order, if is of the opinion that the order passed by the Principal Commissioner of Central Excise or Commissioner of Central Excise is not legal or proper, direct the Principal Commissioner of Central Excise or Commissioner of Central Excise]to appeal to the Appellate Tribunal against the order. (2A)The Committee of Commissioners may, if it objects to any order passed by the Commissioner of Central Excise (Appeals) under section 85, direct any Central Excise Officer to appeal on its behalf to the Appellate Tribunal against the order : - Provided that where the Committee of Commissioners differs in its opinion against the order of the Commissioner of Central Excise (Appeals), it shall state the point or points on which it differs and make a reference to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty in relation to which the appeal is made, be accompanied by a fee of, (a) where the amount of service tax and interest demanded and penalty levied by any Central Excise Officer in the case to which the appeal relates is five lakh rupees or less, one thousand rupees . (b) where the amount of service tax and interest demanded and penalty levied by any Central Excise Officer in the case to which the appeal relates is more than five lakh rupees but not exceeding fifty lakh rupees, five thousand rupees; (c) where the amount of service tax and interest demanded and penalty levied by any Central Excise Officer in the case to which the appeal relates is more than fifty lakh rupees, ten thousand rupees : Provided that no fee shall be payable in the case of an appeal referred to in sub-section (2) or sub-section (2A) or a memorandum of cross-objections referred to in sub-section (4). (6A) Every application made before the Appellate Tribunal, (a) in an appeal **** for rectification of mistake or for any other purpose; or (b) for restoration of an appeal or an application, shall be accompanied by a fee of five hundred rupees : Provided that no such fee shall be payable in the case of an appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hand, if the Crown seeking to recover the tax, cannot bring the subject within the letter of the law, the subject is free, however apparently within the spirit of law the case might otherwise appear to be. In other words, if there be admissible in any statute, what is called an equitable construction, certainly, such a construction is not admissible in a taxing statute where you can simply adhere to the words of the statute. VISCOUNT SIMON quoted with approval a passage from ROWLATT, J. expressing the principle in the following words : In a taxing Act one has to look merely at what is clearly said. This is no room for any intendment. There is no equity about a tax. There is no presumption as to tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used. It was further observed :- In all tax matters one has to interpret the taxation statute strictly. Simply because one class of legal entities is given a benefit which is specifically stated in the Act, does not mean that the benefit can be extended to legal entities not referred to in the Act as there is no equity in matters of taxation.... Yet again, it was observed :- It may thus be take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not avail an assesse, so it does not avail the Revenue. 39. The passages extracted above, were quoted with approval by Courts in atleast two decisions being Commissioner of Income Tax v. Kasturi Sons Ltd., (1999) 3 SCC 346 and State of West Bengal v. Kesoram Industries Limited, (2004) 10 SCC 201 [hereinafter referred as Kesoram Industries case for brevity]. In the latter decision, a Bench of seven-Judges, after citing the above passage from Justice G.P. Singh s treatise, summed up the following principles applicable to the interpretation of a taxing statute : (i) In interpreting a taxing statute, equitable considerations are entirely out of place. A taxing statute cannot be interpreted on any presumption or assumption. A taxing statute has to be interpreted in the light of what is clearly expressed : it cannot imply anything which is not expressed : it cannot import provisions in the statute so as to supply any deficiency : (ii) Before taxing any person, it must be shown that he falls within the ambit of the charging section by clear words used in the section; and (iii) If the words are ambiguous and open to two interpretations, the benefit of interpretation is given to the su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... days from the date of receipt of a copy of this order, provided the petitioner has paid a sum of Rs. 1,66,83,286/- as was ordered on 17.03.2020. (ii)The petitioner shall also pay the interest at 12% p.a. on the delayed payment of (Rs. 1,66,83,286/- and Rs. 33,36,656/-) Rs. 2,00,19,942/- from the date of expiry of 30 days from the receipt of Form SVLDRS-3. (iii)In case, the petitioner had failed to pay the amount of Rs. 1,66,83,286/- as ordered on 17.03.2020 and fails to pay the amounts as ordered now, the benefit of Sabka Vishwas - (Legacy Dispute Resolution) Scheme, 2019 shall not be extended to the petitioner. 46. These writ petitions stand disposed with the above observations. Consequently, connected miscellaneous petitions are closed. No costs. W.P.Nos. 6697, 6700 and 6701 of 2020 05-03-2024 C.SARAVANAN, J. This case is listed under the caption For being mentioned , at the instance of the learned counsel for the petitioner to modify para 45 of the order dated 31.01.2024. Paragraph No.45 of the order reads as under:- 45. In view of the above, the following order is to be passed :- (i) The petitioner shall pay an amount of Rs. 33,36,656/- (Rs. 2,00,19,942 Rs. 1,66,83,286/-) with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... granted by the Central Government Amended vide Notification No.1 of 2020 C.E.(N.T.,) dated 14.05.2020. Thus, the balance amount to be paid under the scheme was only Rs. 33,66,656/- which was not paid is on account of the bonafide view held by the petitioner, that the petitioner's case was under the category appeal not under the arrears category. The delay in payment is excusable since this Court had earlier entertained a prima facie view that the stand of the petitioner was plausible and granted conditional stay. The petitioner has also paid the amount although belatedly on 30.06.2020. 45(a). In view of the above, the following orders are passed : - i)The petitioner shall pay an amount of Rs. 33,36,656/- (Rs. 2,00,19,942 Rs. 1,66,83,286/-) within a period of 30 days from the date of receipt of a copy of this order. ii)The petitioner shall also pay the interest at 12% p.a. on the delayed payment of Rs. 33,36,656/- from the date of expiry of 30 days from 30.06.2020. (iii)On payment of the amount mentioned above, the case of the petitioner shall be settled under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019. 6. Registry is directed to substitute paras 45 45(a) with the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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