TMI Blog2015 (9) TMI 736X X X X Extracts X X X X X X X X Extracts X X X X ..... one is disqualified as per the law, the notice/order must be put to the knowledge of the person. Any notice, which is merely 'issued' but not 'served' cannot be said to be within the knowledge of the person against whom it is 'issued' but not 'served'. Since the Show Cause Notice No. 28/213-ST dated 22.02.2013 issued under Section 73 of the Finance Act, 1994 has not been served on the appellant before 01.03.2013, the impediment of Section 106 of the Finance Act, 2013 regarding non-filing/non-consideration of declaration under VCES will have no application; and since the appellant otherwise fulfills the criteria of Finance Act, 2013, the benefits envisaged therein for availing the waiver of interest and penalties will be available to him. - Decided in favour of assessee. - Misc. Application No. 22141/2014 , Service Tax Appeal No. ST/21945/14-SM - Final Order No. 21794/2015 - Dated:- 7-7-2015 - S. K. Mohanty, Member (J), J. For the Appellant : Shri V Unnikrishnan, Consultant For the Respondent : Shri A K Nigam, Addl. Commissioner (AR) ORDER Per S K Mohanty The issue that arises for consideration in this appeal is the rejection of declaration filed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal. 2. Shri V. Unnikrishnan, the Ld. Consultant for the appellant submitted that the show cause notice dated 22.02.2013 was not served to the appellant before 01.03.2013, and thus, the disqualification in terms of the main provision as well as the second proviso to Section 106(1) of the Finance Act, 2013 cannot be applied. The ld. Consultant further submitted that the show cause notice dated 22.02.2013 having been issued under Section 73 of the Finance Act, 1994, which mandated that the notice has to be served on the person for recovery of the service tax not levied or paid, non-service of such notice within the stipulated time frame, cannot take away the substantive right of the appellant to avail the benefits under the VCES. Thus, according to the ld. Consultant, since the SCN was not received by the appellant before 01.03.2013, the benefits provided in the VCES cannot be denied to the appellant on the ground that even if notice is 'issued' it cannot be considered that notice is 'served' upon the appellant. 3. Per contra. Shri A.K. Nigam, the ld. DR appearing for the respondent while reiterating the finding recorded in the impugned order, further submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 (1) Any person may declare his tax dues in respect of which no notice or an order of determination under Section 72 or Section 73 or Section 73A of the Chapter has been issued or made before the 1st day of March, 2013. Provided that .................................................. Provided further that where a notice or an order of determination has been issued to a person in respect of any period on any issue, no declaration shall be made of his tax dues on the same issue for any subsequent period. 7. The only question to be considered in this appeal is whether the date of the show Cause Notice or the date on which it was served on the parson, has to be taken into consideration for interpreting the provisions of Section 106 of the Act, which places an embargo to the effect, that no declaration shall be made for the tax dues where the notice has been issued to the person before 01.03.2013. 8. It is an admitted fact on record that the Show Cause Notice No. 28/2013 ST dated 22.02.2013 issued under Section 73 of the Finance Act, 1994 has not been received by the appellant before 01.03.2013, Section 73 of the Act mandates that in cases, where any service tax has n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme court in the case of State of West Bengal v. Union of India reported in AIR 1963 S.C. 1241 at 1265). 25. The object in setting a time-limit in Section 110(2) was to expedite proceedings so as not harass a citizen whose goods may have been wrongfully seized. The object has been stated by M.P. Menon, J., in C D Gonda Rao v. Additional Secretary, reported in 1982 (10) ELT 270, in relation to Section 79 of the Gold Control Act, which is similar to Section 110 of the Customs Act, as follows: The purpose behind Section 79 is two-fold. The first is that confiscation shall be ordered without the concerned party being given a reasonable opportunity of having his say in the matter. The second is that the appropriate authority should make up his mind within six months whether to proceed with confiscation or not. He should make up his mind within six months whether such proceedings should be initiated, and if he fails to do so, the party concerned is entitled to have the Gold seized returned to him. 12. Contrary is the situation in the present case, in as much as Section 106 of the Finance Act, 2013 prohibits filing of VCES declaration, where the notice under Section 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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