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2018 (3) TMI 274

he scheme or not? - Held that: - Admittedly, for the earlier period, during the course of audit an objection was raised and respondent immediately reversed the Cenvat credit along with interest proceedings against the respondent were closed. The issue raised by the Revenue is that as the order of determination of their service tax liability, therefore, the respondent are not entitled to avail the benefit of Section 106(1) of the Finance Act, 2013. - The similar issue came up before the Honble High Court of Bombay in the case of Pace Setter Business Solutions Pvt. Ltd. [2017 (4) TMI 564 - BOMBAY HIGH COURT] wherein on the identical facts the Hon’ble High Court hold that the assessee is entitled to avail the benefit of the scheme. - A .....

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n of their service tax liability, therefore, as per Section 106 (1) of the Finance Act, 2013, the respondent are not entitled to take the benefit of the said scheme. He also submits that the ld. Commissioner (Appeals) has relied on the decision in the case of Pace Setter Business Solutions Pvt. Ltd. (supra) as in that case the Hon ble High Court has entertained the issue in a writ petition filed by the petitioner. Therefore, the same is not applicable to the facts of this case. 4. On the other hand, the ld. Counsel appearing on behalf of the respondent reiterated the findings of the impugned order. 5. Heard both sides. Considered the submissions. 6. The short issue involved in the matter is that whether in the facts and circumstances of the .....

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he undisputed position, no order of determination can be issued to the appellant as an order of determination under Section 73 can be issued only pursuant to the issuance of a Show Cause Notice. The Adjudicating Authority is misconstrued to hold that the audit para of IAR No. 95/08 is an order of determination whereas subsections (3) & (4A) of Section 73 of Finance Act 1994 speak of waiver of Show Cause Notice and without issuance of SCN, no order of determination can be made under Section 73 of the Finance Act, 1994. Further, there is no allegation that pursuant to audit para, proviso to these sub-sections has been invoked against the appellant in respect of the issue of VCES declaration. What is important to note is the admittance of .....

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reject the application as is now made by the present writ petitioner. The application invoking VCES has to be considered and if at all rejected, it must be on the touchstone of the paragraphs of the VCES, 2013 and the wording thereof. The scheme itself cannot be defeated by holding that on the earlier occasion parties like the petitioners have accepted their liability....we allow the writ petition. The ratio of this judgement is squarely applicable to the instant case. Further, as discussed above, there is no other objection barring the similarity of the issue of VCES declaration to an earlier audit para, which according to the aforecited judgement, is not sustainable. To sum up, I hold that (a) the audit para is not an order of determinati .....

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