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2021 (3) TMI 379 - BOMBAY HIGH COURTSVLDRS - re-determination of the 'amount payable' under the scheme - Claim of refund of amount deposited as per the Court order - levy of personal penalty on Director - the declaration was rejected on the ground that Applicant has not discharged the amount estimated in SVLDRS-3 in the case of M/s Eureka Fabricators, which is the main notice in this case - Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - HELD THAT:- Section 123(a) of the said Act states that for the purposes of the scheme, "tax dues" means the total amount of duty which is being disputed in a single appeal arising out of an order and pending as on 30.06.2019 or in the case of more than one appeal arising out of an order which are pending as on 30.06.2019 before the appellate forum - The impugned order dated 11.09.2020 passed by the respondent No.3 i.e. the Designated Committee proceeds on the premise that under the provisions of section 123(a) of the said Act, since the petitioner has categorically admitted its tax liability of ₹ 88,16,598.00 in the memorandum of appeal, the tax liability of the petitioner under the scheme is to be computed on the balance amount and the relief of 50% of tax dues under the scheme is required to be given to the petitioner only on the said balance amount which is ₹ 78,10,369.00. Respondent No.3 has arrived at the total tax payable at ₹ 1,27,21,782.50 and has therefore called upon the petitioner to pay the net amount payable of ₹ 16,47,860.50 after giving the petitioner the benefit of the deposit of ₹ 1,10,73,922.00. The principal reason for denial of the benefit to the petitioner is due to the alleged admission by the petitioner of its admitted duty liability in the memorandum of appeal filed before the Commissioner (Appeals) which has been relied upon by the Designated Committee. We have perused the memorandum of appeal filed by the petitioner before the Commissioner (Appeals). The finding in the impugned order dated 11.09.2020 that the petitioner has admitted its tax liability of ₹ 88,16,598.00 before the Commissioner (Appeals) and the Settlement Commission against the total confirmed tax of ₹ 1,66,26,967.00 which therefore needs to be excluded from computation is therefore not sustainable - That apart, under section 124(1)(a)(ii) of the said Act, the relief available to the petitioner under the scheme would be 50% of the entire duty liability of ₹ 1,66,26,967.00 i.e. ₹ 83,13,484.00. Reliance placed on para 2 (iv) of the Circular No.1072/05/2019-CX dated 25.09.2019 to the effect that under Section 123 tax dues is the amount of duty which is the outstanding amount against the declarant and this is the net amount after deducting the dues that he has already paid in the form of pre-deposit, is not sustainable and deserves to be rejected. The petitioner therefore has deposited the total sum of ₹ 1,29,12,090.00 with the respondents, though petitioner's deposit of ₹ 55,56,045.00 on orders of the Court cannot be construed as a pre-deposit or a deposit under the scheme; therefore the proviso to sub-section (2) of section 124 would not be applicable or attracted to the said deposit. It is also settled preposition that an order of the Court can cause prejudice to none. It is evident that the amount payable by the petitioner under the scheme would be 50% of the tax dues less the deposits and pre-deposits which is 50% of ₹ 1,66,26,967.00, ₹ 83,13,484.00 less the pre-deposits and deposits i.e., ₹ 73,17,877.00 (Rs,50,00,000.00 plus ₹ 5,17,877.00 plus ₹ 18,00,000.00). The figure comes to ₹ 9,95,607.00. Since petitioner has paid ₹ 55,56,045.00 as per Court's order, petitioner would be entitled to a refund of ₹ 55,56,045.00 less ₹ 9,95,607.00 which is ₹ 45,60,438.00 - Petition allowed.
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