TMI Blog2016 (7) TMI 560X X X X Extracts X X X X X X X X Extracts X X X X ..... has committed a breach of section 107(3) of the VCES, 2013 in making the payment of first instalment and hence, he is not entitled to get the benefits provided under this scheme. Application was rightly rejected - Writ petition dismissed. - Decided against the assessee. - I.A. No. 1059 of 2015 with W.P.(T) No. 2429 of 2014 - - - Dated:- 26-4-2016 - MR. D.N. PATEL AND MR. ANANDA SEN, JJ. For The Petitioner : M/s Binod Poddar For The Respondent : M/s Ratnesh Kumar, Sweety Kumari This writ petition has been preferred mainly challenging the order dated 7th April, 2014, passed by the Assistant Commissioner, Central Excise and Service Tax, Division-IV, Jamshedpur, whereby this petitioner has been held disqualified from the Voluntary Compliance Encouragement Scheme, 2013 (hereinafter to be referred to as the VCES, 2013) and the immunity provided under section 108(1) of the Finance Act, 2013 was withdrawn, as this petitioner has not deposited 50% of the tax dues so declared under Section 107(1) and submitted the proof of such payment to the designated authority. As the requirement under Section 107(3) of the VCES, 2013 was not fulfilled, this petitioner was disqualified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity deserves to be quashed and set aside. ● It is further submitted that under the VCES, 2013, no assessee can be declared disqualified and only the dues can be recovered with interest by the respondents. This aspect of the matter has not been appreciated by the respondent authorities and hence also order dated 7th April, 2014 passed by the respondent authorities deserves to be quashed and set aside. 3. Arguments canvassed by the counsel appearing for the Union of India ● It is submitted by the counsel for the respondent Union of India that the VCES, 2013 cannot be liberally interpreted by this court, otherwise every assessee will have his own liberal interpretation and all the clauses of the scheme will be in a floating situation and therefore, VCES, 2013 should be interpreted strictly. ● It is submitted by the counsel appearing for Union of India that as per Section 107(3) of VCES, 2013, the declarant/petitioner has to make the payment of at least 50% of the Service Tax liabilities so declared on or before December, 2013 and the remaining amount is to be paid on or before 30th June, 2014 and if there is any latches in payment of second instalment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... each of the VCES, 2013 by this petitioner. The amount cannot be deposited as per the sweetwill of the assessee. This amount has to be deposited as per the guidelines provided under VCES, 2013. For the rest amount of the first 50%, a cheque of ₹ 60,00,000/- was given on December, 2013 and that too a post-dated cheque. Date of the cheque is 30th January, 2014 and it was encashed on 5th February, 2014. Thus, there is an admitted fact that on or before December, 2013 minimum, 50% of the Service Tax so declared by the declarant was not paid. This aspect of the matter was properly appreciated by the Assistant Commissioner, Central Excise and Service Tax, Division-IV, Jamshedpur while passing the order dated 7th April, 2014 and the immunity granted under Section 108(1) of the Finance Act, 2013 was rightly withdrawn and no error has been committed by the authority while passing the aforesaid order dated 7th April, 2014, hence, this writ petition may not be entertained. ● It is further submitted by the counsel for the respondents that there is no question of discriminatory treatment being meted out to this declarant and that there cannot be equality in illegality. If any decl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e tax dues or part thereof remaining to be paid after the payment made under sub-Section (3) shall be paid by the declarant on or before the 30th day of June, 2014. Provided that where the declarant fails to pay said tax dues or part thereof on or befoe the said date, he shall p ay the same on or before the 31st day of december, 2014 along with interest thereon, at such rate as is fixed under section 75 or, as the case may be, section 73B of the Chapter for the period of delay starting from the 1st day of July, 2014. (5) Notwithstanding anything contained in sub-section (3) and sub-section (4), any service tax which becomes due or payable by the declarant for the month of January, 2013 and subsequent months shall be paid by him in accordance with the provisions of the Chapter and accordingly, interest for delay in payment thereof, shall also be payable under the Chapter. (6) The declarant shall furnish to the designated authority details of payment made from time to time under the Scheme along with a copy of acknowledgement issued to him under sub-section (2). (7) On furnishing the details of full payment of declared tax dues and the interest, if any, payable un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment on or before 31st December, 2014, but, in this eventuality the payment shall be made with interest. This is the another liberal approach of the Union of India as provided under the VCES, 2013. (d) The scheme is nothing but a policy decision of Union of India and this court will be extremely slow and careful in making further liberal interpretation of the VCES, 2013, because this court is not sitting in appeal against the said scheme nor this court can replace an existing scheme with a better one. The clauses of VCES, 2013 cannot be changed by this court. If Section 107(3) directs the declarant to make the payment of at least 50% of the service tax so declared under sub-section 1 of Section 107, to be paid on or before December, 2013, court cannot give further instalment in the first instalment to the effect that part of the payment can be made on or before 31st December, 2013 and the remaining amount can be paid later on. This is not permissible while exercising powers under Article 226 of the Constitution of India. (III) It appears on perusal of VCES, 2013 that the clauses of the Scheme are drafted very clearly and they are bereft of any ambiguity. What is to be paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter of policy decision of the Union of India. Hence, this court will not extend the period for the payment of tax dues unless the scheme in question gives that liberty to the declarant. As stated hereinabove, in the facts of the present case, so far as the payment of first instalment is concerned, which was minimum 50% of the tax dues so declared was to be paid on or before 31st December, 2013 and there is no provision under the VCES, 2013 for relaxation in the payment of first instalment. So far as second instalment is concerned, it was to be paid on or before 30th June, 2014. However, there is slight leniency in the payment of second instalment, viz. if the second instalment is not paid before 30th June, 2014, the declarant can make the payment on or before 31st December, 2014, but, with interest. Thus, this petitioner-declarant has committed a breach of section 107(3) of the VCES, 2013 in making the payment of first instalment and hence, he is not entitled to get the benefits provided under this scheme. (VII) As submitted by the counsel for the petitioner, some errors might have been committed by the department in case of one or two declarant, but no benefit of those error ..... X X X X Extracts X X X X X X X X Extracts X X X X
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