TMI Blog2018 (10) TMI 327X X X X Extracts X X X X X X X X Extracts X X X X ..... on 73 of the Act envisages recovery of service tax not levied or paid or short-levied or short-paid or erroneously refunded to the assessee whereas Section 73A of the Act which was later on inserted by Finance Act, 2006 envisages the service tax wrongly collected by any person to be deposited with Central Government. Section 73A of the Act was obviously to prevent any situation of unjust enrichment to the assessee by retaining the amount even wrongly collected from the customers in the name of service tax and therefore that amount so collected as service tax in any case was liable to be deposited with the Central Government. The short payment of service tax under Section 73 of the Act whether or not levied earlier or short levied earlier does not stand on a different footing so far as VCES, 2013 is concerned. The Second Proviso clearly begins with a negative stipulation 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”. Therefore, the Second Proviso to Section 106 of the Act is a clear bar in the present case for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t from the issue involved in the earlier proceedings which culminated into an Order dated 23-12-2010, is again under a wrong premise. Although, not denying that the Audit Query dated 18-11-2013 contained a reference to Section 73A, it was only a procedural Audit Query issued after conclusion of Audit in which the legal provisions invoked was wrongly referred to, by mistake, as Section 73A. The said Audit Query was followed by a Audit Note and a Show Cause Notice C.No.V/16/40/2014-ST Adjn. Dated 18-02-2014 wherein the legal provisions for demand of service tax defaulted has been correctly invoked under Section 73(1) of the Act, which fact, it appears that the Declarant has overlooked with an intention to mislead the issues. 12.9 Having concluded in the foregoing paragraphs that the issue gets covered only under Section 73(1) of the Act and not under Section 73A of the Act, the observation of the Hon ble High Court of Karnataka, that whether the issues that arose in the Notice dated 19-03- 2010 culminating in the Order dated 23-12-2010, are the very same issues, which has arisen for the subsequent period April 2012 to December 2012, in respect of which, the Declarant is seeking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o even though for the subsequent period April-2012 to December-2012. 6. The relevant definitions of tax dues under Section 105(e) and Section 106 including the Second Proviso to Section 106 are quoted below for ready reference: Section 105: (e) tax dues means the service tax due or payable under the Chapter or any other amount due or payable under section 73A thereof, for the period beginning from the 1st day of October, 2007 and ending on the 31st day of December, 2012 including a cess leviable thereon under any other Act for the time being in force, but not paid as on the 1st day of March, 2013. Person who may make declaration of tax dues. 106. (1) Any person may declare his tax dues in respect of which no notice or an order of determination under section 72 of section 73 or section 73A of the Chapter has been issued or made before the 1st day of March, 2013: Provided that any person who has furnished return under section 70 of the Chapter and disclosed his true liability, but has not paid the disclosed amount of service tax or any part thereof, shall not be eligible to make declaration for the period covered by the said return: Provided further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the period of such stay shall be excluded in computing the aforesaid period of [thirty months] or five years, as the case may be. 73A. Service tax collected from any person to be deposited with Central Government (1) Any person who is liable to pay service tax under the provisions of this Chapter or the rules made thereunder, and has collected any amount in excess of the service tax assessed or determined and paid on any taxable service under the provisions of this Chapter or the rules made thereunder from the recipient of taxable service in any manner as representing service tax, shall forthwith pay the amount so collected to the credit of the Central Government. 8. On the last date of hearing on 17.09.2018, after hearing both the learned counsels, this Court had given some time to the learned counsel for the petitioner-assessee to take instructions from the petitioner as to whether the assessee would like to withdraw its pending appeal from the CESTAT for the tax period of 2007 in order to save the applicability of Second Proviso to Section 106 of the VCES 2013. The said order passed by this Court on 17.09.2018 is quoted below for ready reference: 1. Learned co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax not levied or paid or short-levied or short-paid or erroneously refunded to the assessee whereas Section 73A of the Act which was later on inserted by Finance Act, 2006 envisages the service tax wrongly collected by any person to be deposited with Central Government. Section 73A of the Act was obviously to prevent any situation of unjust enrichment to the assessee by retaining the amount even wrongly collected from the customers in the name of service tax and therefore that amount so collected as service tax in any case was liable to be deposited with the Central Government. 11. The short payment of service tax under Section 73 of the Act whether or not levied earlier or short levied earlier does not stand on a different footing so far as VCES, 2013 is concerned. The purpose of the said Scheme announced by the Government is to put an end to the litigation by the Assessee against the Government and by depositing the entire amount of service tax either not paid earlier or short levied earlier under Section 73 of the Act or wrongly collected service tax but not paid under Section 73A of the Act. The reference of all the three provisions of Section 72, 73 or 73A of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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