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2015 (8) TMI 505 - BOMBAY HIGH COURT

2015 (8) TMI 505 - BOMBAY HIGH COURT - 2015 (40) S.T.R. 653 (Bom.) - Non issuance of acknowledgement of discharge of service tax - Tax paid through VCES - Held that:- When the petitioner raises appropriate defences and files a reply to the show cause notice or if it is already filed during the course of his submissions which could be oral, he will be able to point out that he had availed of The Service Tax Voluntary Compliance Encouragement Scheme and complied with the same particularly of the r .....

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sued the acknowledgement of discharge in such form and in such manner as may be prescribed does not mean that the petitioner has failed to discharge his liability and, therefore, the demand should not be sustained. If that certificate has not been issued and in terms of the paragraph, it would be open for the petitioner to urge that failure on the part of the authority to issue such a declaration should not visit him with any tax demand including of interest and penalty - no reason to keep the p .....

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order of writ of Certiorari or any other writ or order and/or direction in the nature of Certiorari under Article 226 of the Constitution of India calling for the records of the case and after going through the legality and correctness thereof this Hon'ble Court be pleased to quash and set aside the impugned Order dated 28th August, 2013 being EXHIBIT B, EXHIBIT B1 & EXHIBIT B2 hereto issued by the Respondent No.5 for attaching the said three Bank accounts and recovering the amounts the .....

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going through the legality and correctness thereof this Hon'ble Court be pleased to quash and set aside the impugned order dated 28th August, 2013 issued by the Respondent No.5 for attaching the said three Bank accounts and recovering the amounts therein being EXHIBIT B, EXHIBIT B1 & EXHIBIT B2 hereto, with a direction to : (i) Deposit sum of ₹ 45 lakhs in the Court. (ii) Payment of ₹ 45 lakhs with interest @ 18% p.a. w.e.f. 30th August, 2012 till his payment is made. (iii) .....

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that the respondent No.6 having not closed the proceedings under the scheme entitled The Service Tax Voluntary Compliance Encouragement Scheme, 2013, by issuing a declaration in terms of paragraph 107(7) thereof, the show cause notice which is issued and which is required to be adjudicated proceeds on a wrong and incorrect assumption. That adjudication will take place before a distinct adjudicating officer. He is not the authority in terms of the Scheme and that power is only vested in the resp .....

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as contained in the letters copies of which are at pages 130 and 132 of the paper-book. In the circumstances, in the absence of such a declaration as is required by the scheme, the Adjudicating Authority will proceed to recover, not only the duty amount, but interest and penalty. Therefore, the petitioner will not be in a position to urge during adjudication proceedings that any adjustments or appropriation ought to be made. 6. Mr. Jetly appearing for the Revenue on the other hand would submit .....

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hroff at some length, we find that the show cause notice has been issued and is pending adjudication. The show cause notice itself recites as to how the liability under the Finance Act arises and to pay the service tax. The show cause notice recites at paragraph 5 as to how the petitioner-assessee has been continuously requested by letters and summons to produce various documents by the Department. The books of account and other documents which were relevant for the purposes of this scrutiny and .....

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unts. The application filed under the Scheme with the Department for the period July 2012 to December 2012 declaring service tax liability of ₹ 21,59,883/- is referred to in paragraph 6 of this show cause notice. Then the letter of 23rd December, 2013 of the petitioner requesting adjustment of an amount relating to 50% of the declared amount of ₹ 21,58,883/- is referred. The amount of ₹ 71,19,869/- recovered following the action under section 87(b) of the Finance Act, 1994, is .....

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commencing from 1st July, 2012 to 31st August, 2013. The declaration under the Scheme in the sum of ₹ 21,59,883/- is specifically referred in this paragraph and which is for July 2012 to December 2012 under The Service Tax Voluntary Compliance Encouragement Scheme, 2013, and the request to adjust 50% of the amount against the amount credited by the bank to the service tax account following action under section 87(b) of the Finance Act, 1984. The service tax liability amounting to ₹ 6 .....

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Service Tax Voluntary Compliance Encouragement Scheme and complied with the same particularly of the requirement or procedure for making declaration of the payment of tax dues. The authority designated under the Scheme has acknowledged the declaration, that the petitioner has in terms of the declaration made the payment and furnished details to the Designated Authority under the Scheme along with a copy of the acknowledgement issued to him, but the Designated Authority has failed to issue an ack .....

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