TMI Blog2021 (2) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... However, as per the proviso on sufficient cause being shown by the declarant only one adjournment may be granted by the designated committee. While giving an opportunity of hearing to the declarant by the designated committee when its estimation exceeds that of the declarant has been made mandatory, granting of adjournment of such opportunity of hearing or confining the same to only one adjournment by the designated committee has been made discretionary. Elaborating further we may say that on sufficient cause being shown the hearing may be adjourned. Thus, discretion has been vested on the designated committee to grant adjournment of personal hearing in an appropriate case. Such discretionary power has to be exercised in a just, fair and judicious manner. But if on the adjourned date, for reasons beyond the control of either the designated committee or of the declarant or for any act of God, say for example, there is fire or flood or an earthquake or a pandemic as in the present case, the hearing cannot take place, can it be construed that there can be no further hearing beyond the date of hearing fixed. Such a view besides being too narrow and rigid would also be opposed to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction which would vitiate the decision making process and ultimately the decision taken. Matter is remanded back to respondent No.4 to consider the declaration of the petitioner vis-a-vis claim of CENVAT credit of ₹ 3,28,49,069.00 as pre-deposit in addition to the cash deposit of ₹ 1,11,25,000.00. While doing so respondent No.4 shall provide an opportunity of hearing to the petitioner and thereafter pass a speaking order with due intimation to the petitioner - petition allowed by way of remand. - WRIT PETITION (L) NO.3135 OF 2020 - - - Dated:- 28-1-2021 - UJJAL BHUYAN ABHAY AHUJA, JJ. Mr. Bharat Raichandani i/b. UBR Legal for Petitioner. Mr. Pradeep Jetly, Senior Advocate a/w Mr. J. B. Mishra for the Respondents. Judgment and Order : (Per Ujjal Bhuyan, J.) Heard Mr. Raichandani, learned counsel for the petitioner and Mr. Jetly, learned senior counsel for the respondents. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 05.05.2020 and further seeks a direction to the respondents to afford an opportunity of hearing to the petitioner and thereafter pass appropriate order in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conferring substantial benefits on the declarants subject to eligibility. 8. In terms of the aforesaid scheme, petitioner filed its declaration on 30.12.2019 under the category of investigation, enquiry or audit and within the sub-category of investigation by DGGI . In the said declaration, petitioner declared an amount of ₹ 8,00,78,066.00 as the outstanding service tax liability for the period under consideration and also indicated pre-deposit of ₹ 4,39,74,069.00. 9. Under section 124(1)(d) of the Act, the amount payable under the scheme is 50% of the tax dues if the tax dues are linked to an enquiry, investigation or audit which amount was quantified on or before 30.06.2019. Section 124(2) of the Act allows for deduction of any pre-deposit / deposit made by a declarant. 10. In the instant case, tax dues of the petitioner were quantified on or before 30.06.2019 at ₹ 8,00,78,066.00. So the amount payable works out to ₹ 4,00,39,033.00 being 50% of the tax dues. As per the petitioner s declaration, it had already paid ₹ 4,39,74,069.00 (cash payment of ₹ 1,11,25,000.00 and CENVAT credit of ₹ 3,28,49,069.00) as pre-deposit / deposit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom 25.03.2020. Directions were issued to all state governments and union territories for strict implementation of the lock-down. 15. In view of imposition of lock-down, petitioner could not appear in the personal hearing on 30.03.2020. 16. While the lock-down continued, petitioner was surprised to receive Form No.SVLDRS-3 from respondent No.4 disallowing payment of CENVAT credit as pre-deposit by confining the pre-deposit to the cash payment of ₹ 1,11,25,000.00 only and consequently quantifying the amount payable by the petitioner at ₹ 2,89,14,033.00. This was done without granting opportunity of personal hearing to the petitioner subsequent to 30.03.2020 on which date the scheduled personal hearing was not possible because of the lock-down. Form No.SVLDRS-3 was received by the petitioner on 05.05.2020. 17. Immediately thereafter petitioner wrote a letter dated 08.06.2020 requesting respondent Nos.3 and 4 to grant an opportunity to the petitioner to explain as to why the CENVAT credit should be treated as a pre-deposit. However, there was no response. 18. Aggrieved, present writ petition has been filed. 19. By order dated 22.10.2020, this Court had issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by exercising power under section 128 of the Act but the same was not done. 21.1. Mr. Raichandani has taken us through the various documents on record and submits that in view of Covid-19 pandemic and the resultant lock-down, no personal hearing could have been held on 30.03.2020 which was right in the middle of the lock-down. Both the central government and the state government had taken strict measures to enforce the lock-down, violation of which was threatened with arrest and other coercive measures. In such a situation, petitioner could not have appeared in the personal hearing fixed on 30.03.2020. Therefore, such non-appearance could not have been used against the petitioner to say that since petitioner failed to appear in the adjourned personal hearing, respondents were not obliged to grant further hearing to the petitioner. Even then also, designated committee has failed to discharge its duty enjoined by law in as much as it has failed to decide the matter based on available record by accepting CENVAT credit of ₹ 3,28,49,069.00 as pre-deposit of the petitioner. This has caused serious prejudice to the petitioner. Impugned decision which is in violation of the princ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a statement indicating the amount payable by the declarant within 60 days. 25.2. Sub-section (2) says that where the amount payable by the declarant as estimated by the designated committee exceeds the amount declared by the declarant then the designated committee shall issue a statement in electronic form mentioning the amount payable by the declarant within 30 days of receipt of the declaration. 25.3. Under sub-section (3), after issue of the estimate under subsection (2), the designated committee shall give an opportunity of being heard to the declarant if he so desires before issuing the statement indicating the amount payable by the declarant. As per the proviso, on sufficient cause being shown by the declarant, only one adjournment may be granted by the designated committee. 25.4. As per sub-section (4), after hearing the declarant, a statement in electronic form indicating the amount payable by the declarant shall be issued within a period of 60 days from the date of receipt of the declaration. 26. In exercise of powers under section 132 of the Act, central government has framed a set of rules called Sabka Vishwas (Legacy Dispute Resolution) Scheme Rules, 2019 (b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als with designated committee giving opportunity of hearing to the declarant Parliament has used the word shall but while considering grant of adjournment as per the proviso to sub-section (3), Parliament has used the word may. The distinction though subtle is significant. While giving an opportunity of hearing to the declarant by the designated committee when its estimation exceeds that of the declarant has been made mandatory, granting of adjournment of such opportunity of hearing or confining the same to only one adjournment by the designated committee has been made discretionary. Elaborating further we may say that on sufficient cause being shown the hearing may be adjourned. Thus, discretion has been vested on the designated committee to grant adjournment of personal hearing in an appropriate case. Such discretionary power has to be exercised in a just, fair and judicious manner. But if on the adjourned date, for reasons beyond the control of either the designated committee or of the declarant or for any act of God, say for example, there is fire or flood or an earthquake or a pandemic as in the present case, the hearing cannot take place, can it be construed that there can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial to the petitioner in so far availing the benefit of the scheme inasmuch as CENVAT credit to the extent of ₹ 3,28,49,069.00, as claimed by the petitioner, has not been treated as a pre-deposit. To that extent, impugned order dated 05.05.2020 is clearly vitiated and is liable to be set aside and quashed. 31. Since we have taken the view that the impugned decision contravenes the principles of natural justice causing prejudice to the petitioner and consequently the matter is required to be remanded back to the designated committee, it is not necessary to delve into the second grievance of the petitioner i.e., to treat the CENVAT credit amount of ₹ 3,28,49,069.00 as pre-deposit of the petitioner while granting relief under the scheme. 32. However, before parting with the record, there is one more aspect which we would like to briefly dilate upon. In their affidavit, respondents have stated that designated committee (respondent No.4) has limited the pre-deposit of the petitioner to cash payment of ₹ 1,11,25,000.00 and thus denying the benefit of CENVAT credit on the basis of reports received from the Deputy Director, DGGI Zonal Office, Mumbai dated 04.03.2020 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
