TMI Blog2020 (8) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... OinO1 that, by applicationof Section 130(2) shall neither be refunded nor utilised towards any other demand. This argument is also misconceived. The petitioner, as confirmed by the order of R2, is right about the double demands raised for Periods 1 and 2. Thus, as far as the demand of ₹ 19,18,375/- is concerned, it ought not to have been raised at all - The remaining demand of ₹ 9,98,350/- corresponding to Period 2 also stands covered/telescoped by the amount of ₹ 80,74,333/- already paid for the same period earlier. In stating this, I have taken note of the position that the total taxable value of the two projects under both SCN 1 and 2 is identical. The point of dispute revolves around the remittance or otherwise of the amount of ₹ 19,15,491/-. In the light of the detailed discussions, there being no dispute on the position that the petitioner has, admittedly, remitted the aforesaid amount and the demand under SCN2/OinO2 is a duel demand, the computation of the petitioner is accepted and the impugned order set aside. The Dispute Resolution Scheme is an attempt to close legacy tax disputes and a certain amount of fairness should be seen in the interp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars after issue of the notice and the petitioner, vide reply 28.03.2016, while objecting to the delay in initiating proceedings, pointed out that the receipts in regard to the same two projects sought to be brought to tax had suffered tax already under OinO1 passed in 2013. vi) As regards the demand covered under Annexure 1 (for the period April 2009 to March 2010), the petitioner submitted that though there was an omission to return receipts of turnover in the Service tax returns for the relevant period, the receipts had been duly included in the returns for the subsequent year, that is, 2010-2011 and hence there was no short payment as alleged. vii) Submissions were also advanced on the legal issue as to whether tax would be leviable at all on receipts from construction activity and works contracts and reference made to Board Circulars in this respect. I refrain from adverting to these submissions in detail as they do not concern the issue in dispute before me. viii) Suffice it to say that the assessing authority, notwithstanding the aforesaid submissions, proceeded to pass an Order-in-Original dated 14.10.2016 (OinO 2), reiterating the proposals under SCN 2 raising a de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect of appeal challenging OinO 2 dated 14.10.2016 as well. xiv) The aforesaid narration was captured by the petitioner in the personal hearing prior to consideration of its declaration under the Scheme. However, the declaration came to be rejected directing the petitioner to pay 30% of the disputed demand as computed under the Scheme, amounting to ₹ 8,75,014/- vide order dated 06.12.2019. xv) The present Writ Petition is filed challenging the aforesaid order dated 06.12.2019. 2. When the matter came up for admission, this Court, vide order dated 09.01.2020 impleaded the Commissioner of Service Tax (Appeals-II) suo motu as R2 and reiterated the direction to him to consider and dispose the representation of the petitioner dated 16.12.2016 as already ordered by this Court on 09.02.2017 in W.P.No.3167 of 2017. The specific direction of the Court had been that the representation be disposed within a period of two (2) weeks from date of receipt of its order and this had not been complied with by the appellate authority. 3. The petitioner had, in the representation aforesaid, specifically averred that a dual demand of service tax had been raised for the period December 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of demand in the two SCNs dated 12.10.2011 and 09.02.2012. In paragraphs 8 to 11, under the caption Discussion and Findings , R2 states as follows: Discussion and Findings 8. . On verification of the two Notices, I find that SCN No.443/2011, based on an internal audit objection, sought to demand an amount of ₹ 1,69,07,927/- for the period from December 2008 to January 2010 involving two construction projects of the appellant viz., Marry Lands and Dayton Heights. It is also clear from the Notice that an amount of ₹ 99,94,773/- has already been paid by the assessee against this demand which was subsequently appropriated vide the Order-in-Original No.5/2013 dated 30.1.2013. The other Show Cause Notice SCN No.20/2012 dated 9.2.2012, which resulted in issue of Order-in-Original No.48/16-17-ST-II dated 14.10.16, was issued seeking to demand an amount of ₹ 29,16, 716/- covering the periods 2008-09 and 2009-10 on account of CERA objection, involving the very same construction projects viz., Marry Lands and Dayton Heights. 9. Preliminary verification reveals that the two demands involved the same periods and on the same construction projects. To d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jan.2010 14573390 17210191 31783581 13009484 Total 72945982 169536396 2424832378 9990274 B) Land Owner s Portion : ₹ 69,17,653/- TOTAL OF (A) + (B) : ₹ 1,69,07,927/- Two Annexures to the SCN No.20/2012 dated 9.2.2012 are reproduced below: ANNEXURE MONTH WISE INCOME AND SHORT PAYMENT OF SERVICE TAX YEAR 2008-09 Xxxxx A.A.O./CREA VIII ANNEXURE I MONTH INCOME RECEIVED AFTER ADJUSTING LAND COST (RS.) INCOME OFFERED FOR SERVICE TAX (RS.) AMOUNT NOT SHOWN IN ST-3 RETURN (RS.) APRIL 08 1,48,00,100/- 1,48,00,100/- ---- MAY 08 5,03,54,000/- 5,03,54,000/- ---- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NOV -09 36262583 2916500 39178983 DEC-09 40087665 14901842 54989507 JAN-10 17210191 14873390 32083581 FEB-10 31298879 13364246 44663125 MAR-10 22916100 50720951 73637051 TOTAL 314590054 xxxxxx SENIOR AUDIT OFFICER/CERA VIII 10. It is seen from the Annexures that the periods of demand common to both SCNs is from December 2008 to January 2010. For the period December 2008 to March 2009, the value for demand of service tax in SCN No.443/2011 is ₹ 4,64,92,500/- and for the corresponding period the value shown for demand in SCN No.20/2012 is ₹ 4,65,62,500/- (the relevant Annexure indicates the months as Feb 10 and March 10 apparently instead of February 2009 and March 09 due to typographic error). The c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demand of ₹ 29,16,716/-, raised and confirmed, as required under Section 35F of Central Excise Act, 1944. Hence, the same is to be considered as a pre deposit in terms of Section 35F of the Central Excise Act, 1944, and accordingly the appeal is admitted. (ii) The appellant has apparently filed Declaration under SVLDRS, 2019 in respect of the present appeal, against OIO No.48/2016-17 in SCN 20/2012 and has approached the Hon ble High Court by filing a Writ Petition vide WP No.477 of 2020, which has stayed operation of the Order in Form SVLDRS-III dated 6.12.2019 rejecting their declaration under the Scheme. Under the circumstances, the appeal against the Order-in-Original No.48/16-17 ST-II dated 14.10.2016 is premature and therefore to be decided at later stage. 6. R2 has thus rendered categorical findings of fact to the effect that (i) the projects dealt with under the two SCNs are the same (ii) the period covered under the two SCNs are substantially common viz. December 2008 to March 2009 (Period 1) and April 2009 to January 2010 (Period 2) and the additional months covered under SCN 2 are February and March 2010 (iii) the legal issue giving rise to the disputed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the view that they should also be heard, the panel counsel could well have sought inclusion of the same since the orders were dictated in his presence in open Court. Not having done so, the plea of violation of principles of natural justice cannot be taken now. This ground is misconceived and stands rejected. 9. On merits, clearly, there is an overlap between the period covered under SCN1 and SCN2, the former covering the period December 2008 to January 2010 and the latter the period April 2008 to March 2010. The periods December 2008 to January 2010 are thus common under both SCNs. 10. The revenue agrees in counter that the demand of ₹ 19,15,941/- is duplicated. Hence, according to them, the demand under OinO2 stands reduced to ₹ 10,00,775/-of which 30%, as per the Scheme, is a sum of ₹ 3,00,232.50. Then they say that the amount duplicated needs to be reduced from the original demand and cannot be used as pre-deposit for the present demand as it has already been used towards pre-deposit for the appeal challenging OinO 1. This argument is unacceptable. R2 has, after examination of the two SCNs, Orders in Original and the demands raised thereunder hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8377; 0 Revenue s computation under impugned order S.No. Category Issue Involved Time Period Tax dues Tax Relief Pre-deposit/any other deposit of duty Estimated Amount From Period To Period Name Amount Name Amount 1 LITIGATION 14/10/2016 14/10/2016 Works Contract service 00440410 29,16,716.00 20,41,701.20 Works contract service 00440410 8,75,014.80 Grand Total 29,16,716.00 20,41,701.20 8,75,014.80 14. The point of dispute revolves around the remittance or other ..... X X X X Extracts X X X X X X X X Extracts X X X X
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