9911796707
TMI Blog2021 (3) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... ettle the declaration of the petitioner dated 20.09.2019 filed under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 (for short "SVLDRS") and thus granting consequential relief(s) including refund of an amount of Rs. 45,60,438.00 to the petitioner. 4. Before we advert to the submissions made on behalf of the respective parties, it will be apposite to briefly refer to the relevant facts as pleaded. For the sake of convenience, facts in Writ Petition (L) No.4417 of 2020 are considered for adjudication. 4.1. Petitioner is a manufacturing unit holding central excise registration for manufacturing of pressure vessels i.e. road tankers and storage tanks falling under tariff item No.73090090 of the first schedule to the Central Excise Tariff Act, 1985. 4.2. Intelligence input was received by officers of the headquarters of Anti Evasion Wing Thane-I Commissionerate that the petitioner was clearing pressure vessels / tanks for highly inflammable gases such as LPG, Propane, Ammonia etc. without payment of central excise duty under the guise of job work of fabrication on payment of service tax and simultaneously availing credit of central excise duty paid on the inputs which were su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .9. Respondent No.3 i.e. Designated Committee issued Form SVLDRS-2 on 23.10.2019 quantifying the estimated amount payable under the scheme at Rs. 33,13,483.00. Petitioner appeared before the Designated Committee for personal hearing on 23.10.2019 and filed its written submissions on 29.10.2019. 4.10. Respondent No.3 i.e. Designated Committee re-issued Form SVLDRS-2 on 12.11.2019 estimating the amount payable by the petitioner under the scheme at Rs. 33,13,483.00. 4.11. Petitioner submitted Form SVLDRS-2A on 12.11.2019 itself stating that the challans pertaining to two deposits namely Rs. 55,17,877.00 paid towards central excise duty and Rs. 18,00,000.00 paid towards interest were not considered while estimating the amount and if so considered the balance final amount payable under the scheme would be Rs. 9,95,607.00 only. 4.12. However, respondent No.3 i.e. Designated Committee by order dated 18.11.2019 in Form SVLDRS-3 quantified the estimated amount payable by the petitioner under the scheme at Rs. 55,56,045.00. 4.13. Being aggrieved, petitioner filed Writ Petition No.3510 of 2019 before this Court for quashing Form No. SVLDRS-3 and for re-determination of the 'amount pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n' and 'subcategory of 'Appeal Pending' as on 30.06.2019. The appeal filed by the petitioner against the Order-in-Original dated 31.01.2019 was pending adjudication before the Commissioner (Appeals) as on 30.06.2019; petitioner's declaration was therefore covered under the above category specified in section 124(1)(a)(ii) of the said Act; under section 124(1)(a)(ii) read with section 123(a)(i) of the said Act, the total 'tax dues' in the petitioner's case would be Rs. 1,66,26,967.00 and the relief available under the scheme would be 50% of the 'tax dues' i.e. Rs. 83,13,484.00. He submitted that petitioner had during investigation and pendency of the proceedings deposited the sums of Rs. 50,00,000.00, Rs. 5,17,877.00 and Rs. 18,00,000.00 respectively; thus the petitioner had deposited a total sum of Rs. 73,17,877.00; therefore balance amount payable by the petitioner under the scheme would be Rs. 9,95,607.00 (Rs. 83,13,484.00 less Rs. 73,17,877.00). 7.1. He submitted that the Order-in-Original dated 31.01.2019 was challenged in its entirety before the Commissioner (Appeals) and the same was pending adjudication as on 30.06.2019; therefore the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n be extended to the petitioner on the said admitted duty liability; tax relief under the scheme would therefore be available only towards the remaining portion of the central excise duty i.e. Rs. 78,10,369.00 (Rs. 1,66,26,967.00 less Rs. 88,16,598.00). 8.1. It is further contended that petitioner had admitted its duty liability in the memorandum of appeal dated 12.04.2019 filed before the Commissioner (Appeals) in paragraph No.7 of the grounds of appeal; such admission of tax liability of Rs. 88,16,598.00 against the total confirmed tax liability of Rs. 1,66,26,967.00 would therefore be outside the purview of the benefit to be given under the scheme and would stand excluded from the total tax liability; the disputed tax amount for the purpose of application of section 123(a) of the said Act is therefore Rs. 78,10,369.00; as against this the tax dues payable by the petitioner under section 124(1)(a) is Rs. 39,05,184.5; this being the position the total tax payable is Rs. 1,27,21,782.50 (admitted liability i.e. Rs. 88,16,598.00 plus benefit under the scheme i.e. 39,05,184.50). 8.2. Referring to section 123(c) of the said Act it is contended that 'tax dues' means in case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... means- (a) where- (i) a single appeal arising out of an order is pending as on the 30th day of June, 2019 before the appellate forum, the total amount of duty which is being disputed in the said appeal; (ii) more than one appeal arising out of an order, one by the declarant and the other being a departmental appeal, which are pending as on the 30th day of June, 2019 before the appellate forum, the sum of the amount of duty which is being disputed by the declarant in his appeal and the amount of duty being disputed in the departmental appeal: Provided that nothing contained in the above clauses shall be applicable where such an appeal has been heard finally on or before the 30th day of June, 2019. (b) where a show cause notice under any of the indirect tax enactment has been received by the declarant on or before the 30th day of June, 2019, then, the amount of duty stated to be payable by the declarant in the said notice: Provided that if the said notice has been issued to the declarant and other persons making them jointly and severally liable for an amount, then, the amount indicated in the said notice as jointly and severally payable shall be taken to be the amount o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subject to the condition that any amount paid as pre deposit at any stage of appellate proceedings under the indirect tax enactment or as deposit during enquiry, investigation or audit, shall be deducted when issuing the statement indicating the amount payable by the declarant: Provided that if the amount of pre deposit or deposit already paid by the declarant exceeds the amount payable by the declarant, as indicated in the statement issued by the designated committee, the declarant shall not be entitled to any refund." 12.3. Section 125 of the said Act relates to the eligibility and ineligibility and sub-section 1(a) thereof is relevant in the present case. Section 125(1)(a) excludes a person who had filed an appeal before the appellate forum and such appeal had been heard finally on or before 30.06.2019 from filing declaration. Section 125(1)(a) is extracted as under:- "125.(1) All persons shall be eligible to make a declaration under this Scheme except the following, namely:- (a) who have filed an appeal before the appellate forum and such appeal has been heard finally on or before the 30th day of June, 2019." 13. In the backdrop of the above provisions case of the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... firmed against the appellants would be as under : Year Number of Pressure Vessels Assessable Value of Clearnace (in Rs.) Duty Admitted (in Rs.) 2012-13 Nil 6356451 785657 2012-13 19 9516755 1176271 2013-14 7 3538000 437297 2014-15 87 40802246 5043158 2015-16 27 11118245 1374215 2016-17 0 0 0 Grand Total 140 71331697 8816598 13.2. From the above it is seen that the paragraph No.7 begins with the words "Without prejudice to other submissions in this ground of appeal and without admitting but assuming,...........". It is the petitioner's case that without admitting but assuming the assessable value and central excise duty in respect of the number of pressure vessels / tanks which were cleared without determination of appropriate central excise duty for the period 2012-2017 as found by the adjudicating authority, the central excise duty which could have been confirmed against the petitioner would be Rs. 88,16,598.00. However it is pertinent to note that the memorandum of appeal challenges the Order-in-Original dated 31.01.2019 passed by the Joint Commissioner of CGST and Central Excise, Thane Rural Commissionerate and the confirmation of cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missionerate. The impugned Order dated 31.01.2019 has confirmed the C. Ex duty demand of Rs. 1,66,26,967/- under Section 11A(4) of the Central Excise Act, 1944 (hereinafter referred to as 'Act'), ordered appropriation of Rs. 50,00,000/- paid during investigations against this liability; imposed an equal penalty of Rs. 1,66,26,967/- under Section 11 AC(C) of the Act r/w Rule 26 of the Central Excise Rules (CER), 2002; imposed payment of interest under Section 11AA of the Act; imposed penalty of Rs. 16,50,000/under Rule 25 of CER, 2002; and also imposed penalty of Rs. 16,50,000/- on Shri Vinoo Bakshi, Director of M/ s Eureka Fabricators Pvt. Ltd., under Rule 26 of CER, 2002. Since, both the above referred appeals dated 12.04.2019 are arising out of the same above said impugned Order dated 31.01.2019 and interrelated entities, for the sake of brevity I am taking up both these appeals together for consideration and decision." 13.4. In view of the above, applying the provisions of section 123(a) of the said Act, the entire duty liability of Rs. 1,66,26,967.00 is to be considered as "tax dues" of the petitioner as on 30.06.2019 for the purposes of the scheme. 13.5. The findin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edings in the form of pre-deposit in the present case may be appropriated and deducted from the tax dues after grant of relief under section 124(1)(a) of the said. We may also refer to the order dated 30.06.2020 which stated that on reconsideration of the petitioner's case in accordance with law, if any refund is to be given to the petitioner after deducting the applicable duty liability under the scheme, the same should be refunded within two weeks of the passing of the order. 14. Thus on a thorough consideration of the entire matter, we are of the view that the impugned order is wholly unsustainable and is liable to be set aside. Further, following the discussions made above, it is evident that the amount payable by the petitioner under the scheme would be 50% of the tax dues less the deposits and pre-deposits which is 50% of Rs. 1,66,26,967.00, Rs. 83,13,484.00 less the pre-deposits and deposits i.e., Rs. 73,17,877.00 (Rs,50,00,000.00 plus Rs. 5,17,877.00 plus Rs. 18,00,000.00). The figure comes to Rs. 9,95,607.00. Since petitioner has paid Rs. 55,56,045.00 as per Court's order, petitioner would be entitled to a refund of Rs. 55,56,045.00 less Rs. 9,95,607.00 which is R ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
