TMI Blog2016 (4) TMI 846X X X X Extracts X X X X X X X X Extracts X X X X ..... r, the Writ Petition cannot be entertained. Therefore, without exhausting the alternative remedy by way of an appeal, the Writ Petition cannot be entertained. Therefore, it is open to the petitioner to challenge the impugned order before the Commissioner (Appeals) by way of an appeal. - Decided against the petitioner - W. P. No. 34481 of 2015, M. P. No. 1 of 2015 - - - Dated:- 20-4-2016 - M. Duraiswamy, J. For the Petitioner : Mr. T. R. Senthil Kumar For the Respondents : Mr. A. P. Srinivas, Standing Counsel ORDER The petitioner has filed the above Writ Petition to issue a writ of certiorarified mandamus to call for the records on the file of the 2nd respondent in order dated 17.08.2015 and to quash the same and to further direct the 1st respondent to pass orders considering the detailed reply letter dated 06.07.2015 filed by the petitioner and issue VCES Form No.3. 2. According to the petitioner, he is the Sole Proprietor of M/s.VMBK Promoters having registered with the Service Tax Commissionerate. During the course of investigation conducted in the premises of the Company, all the properties at Mahalingapuram, Chennai by the Officers of Director General o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or short paid. According to the petitioner, the notice issued by the 2nd respondent without recording of reasons of the Commissioner of Central Excise is invalid in law. Further, the petitioner contended that the 2nd respondent further ignored the reply filed by the petitioner relying upon the Central Board of Excise and Customs, Circular dated 08.08.2013 which has clarified many issues on Voluntary Compliance Encouragement Scheme. 3. The respondents in their counter have stated that pursuant to the summon issued on 03.09.2013, the petitioner appeared on 18.11.2013 and produced copies of IT returns and financial documents like P L Accounts and Balance Sheets and gave a statement to the Investigating Officer stating that he got registered with the Department after commencement of investigation and he would pay the Service Tax liability, which might work out to around ₹ 28,00,000/- for the period from 2009 to 2011-12 and he desired to avail VCES for his earlier Service Tax dues. While filing the application in Form VCES-1 on 23.12.2013, the petitioner declared Service Tax liability aggregating to ₹ 25,69,325/- for the years 2010-11 and 2011-12 alone. However, scruti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port of his contentions, the learned counsel relied upon the following judgments: (i) 2014 (35) S.T.R. 695 (Guj.) [Ramilaben Bharatbhai Patel Vs. Union of India] wherein the Division Bench of this Court held as follows: 5. The learned counsel for the petitioner, however, raised two fold contentions. He firstly contended that the shortfall was due to a bona fide calculation error. The amount involved was very small. He secondly contended that under Section 110, the tax short-paid could be recovered with interest, but the declaration itself cannot be rejected. 6. To our mind, neither of the two contentions can be accepted. The scheme makes no difference between tax dues which are short-paid due to bona fide error and one which flows from deliberate inaction. There is no power for waiving or relaxing the condition of depositing 50% tax dues flowing from Section 107. It would not be possible for this Court to exercise writ jurisdiction to direct the authority, in plain terms, which the statutory provision does not permit. 7. Coming to the second contention, the scheme envisages depositing the tax dues in two stages. Only after the taxes are fully deposited stage-wise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... report dated 24.11.2014, submitted for the approval of the Commissioner, it has been stated that the petitioner has mis-declared the VCES declaration filed on 23.12.2013. Instead of filing the declaration for the total tax payable to the extent of ₹ 26,93,388/-, he has projected the tax liability at ₹ 25,69,324/-, which is short by ₹ 1,24,064/-. As per Section 108 (1) of the Finance Act, the declarant can get immunity against interest liability and penalty to be imposed only for the amount paid under the scheme. In the case of the petitioner, since the declarant appears to be not declared his correct tax liability, as per the report, he may not get the immunity from the interest and penalty or any other proceedings to be initiated for the amount short paid. 9. Further, in the report it has been stated that since the declarant had suppressed the taxable income for the financial year 2009-10 and also availed ₹ 10,00,000/- SSI exemption irregularly during the financial year 2010-11, the declarant is liable to be issued with show cause notice, demanding the differential tax amount of ₹ 1,24,064/- along with interest and also liable to be penalized in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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