TMI Blog2021 (4) TMI 1041X X X X Extracts X X X X X X X X Extracts X X X X ..... dues and on payment of the said dues, issue a discharge certificate under the Scheme. The record of the case reveal that there is a total non compliance of Rule 6 of the CENVAT Credit Rules and the respondent has submitted the invoices pertaining to the year 2013 in the year 2019 which is not during the regime of CENVAT Credit Rules, but during the regime of GST - In the considered opinion of this Court, the learned Single Judge has not at all considered the impact of Rule 6 of the CENVAT Credit Rules, 2017 as invoices were of the year 2013-2014 which is much beyond the period of one year and therefore, the claim of the respondent could not have been appropriated in respect of the amount of ₹ 4,15,14,081/-. Another important aspect of the case is that the Designated Committee under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 does not have any authority to modify the SVLDS-3 at all. When once the appellants have adjusted the claim of respondent as the CENVAT credit of ₹ 4,15,14,081/- availed by the respondent and subsequently, utilized, is an inadmissible CENVAT credit and availment of the same is proposed to be denied in show cause notice. Therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice as to why a total CENVAT credit of ₹ 4,15,14,081/- as per ST-3 returns filed in July, 2018 and August, 2018 for the period from October 2012 to June 2017, should not be denied. 5. The Parliament enacted a Scheme called Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 (SVLDRS for short) vide Finance (No.2) Act, 2019 and the object of the scheme was to provide one time measure for liquidation of past disputes of service tax. The Scheme came into force vide notification dated 21.8.2019 and it provided that in case the duty involved is more than ₹ 50 lakhs, the assessee on payment of 50% of the demand would be eligible to receive a discharge certificate and it was a Ministerial Scheme to bring litigation to an end. 6. The facts on record further reveal that the respondent submitted an application in the prescribed format as provided under the Scheme on 28.12.2019 by applying electronically filled declaration in Form SVLDRS-1 vide Application Reference Number LD2812190006666 in respect of the aforesaid show cause notice 109/2018-19 dated 7.9.2018. The following details were keyed in, in the aforesaid application; i. Tax Dues + ₹ 13,38,22,5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... declared by the respondent. 12. The respondent being aggrieved by the statement issued in Form SVLDRS-3, dated 29.2.2020 came up before this Court by filing a writ petition and the issue involved before the learned Single Judge was, whether the respondent (petitioner) was entitled to take advantage of CENVAT credit on input tax amounting to ₹ 4,15,14,081/- and whether the same has to be treated as pre-deposit under the Scheme or not. 13. Another important aspect of the case is that after issuance of show cause notice on 7.9.2018, the respondent did file service tax returns and claimed CENVAT credit amounting to ₹ 4,15,14,081/-. 14. The learned Single Judge after hearing the learned counsel for the parties at length, in paragraphs 28 and 29 has held as under; 28. The only bone of contention between the parties is, as to whether the petitioner could contend that he was entitled to take advantage of Cenvat credit on input services amounting to ₹ 4,15,14,081/- and consider the same as a pre-deposit under the scheme. 29. It is not in dispute that after the SCN was issued, the petitioner had filed service tax returns and in the said returns, it claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation No.20/2017 C.E. (NT) dated 30.06.2017 as per which the provider of output service is allowed to transfer the credit of service tax paid on input services under the negative list regime only to the extent of such credits whose details are declared in TRAN-1 or TRAN-2 filed in accordance with Section 140 of Central Goods and Services Tax Act, 2017 read with Rule 15 of the Cenvat Credit Rules, 2017. 15. Learned counsel for the appellants has vehemently argued before this Court that the respondent/assessee was not entitled for CENVAT credit because he became disentitled to avail the input tax credit on account of the fact that the requisite forms were not filed within the prescribed period and his right to claim input tax credit had lapsed. In fact, the revenue has disputed the availment and utilization of CENVAT credit of ₹ 4,15,14,081/-. It has been vehemently argued before this Court that the learned Single Judge has erred in law and in facts by deciding the matter in favour of the respondent keeping in view Section 52 of the Frequently Asked Questions computed by the CBIC at paras 41 and 42 of the impugned order and by no stretch of imagination the CENVAT credit co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted by the Parliament known as Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 vide Finance (No.2) Act, 2019 and the object of the Scheme was to provide one time measure for liquidation of past disputes of service tax. The Scheme came into force vide notification dated 21.8.2019 and the respondent/assessee submitted an application in the prescribed format under the Scheme on 28.12.2019 by applying electronically in Form SVLDRS-1. 22. The dispute in the present case is that the appellants have disallowed the pre-deposit of ₹ 1,45,87,081/- i.e., amount of CENVAT which is the subject matter of the show cause notice while considering the application preferred in the SVLDR Scheme. The learned Single Judge has allowed the writ petition and has directed the Designated Committee to accept the declaration filed by the petitioner/respondent in the prescribed format as final and issue a modified Form No.SVLDRS-3 giving credit to the sum of ₹ 4,15,14,081/- as deposit and collect the remaining sum as tax dues and on payment of the said dues, issue a discharge certificate under the Scheme. A statement has been made on affidavit by the appellants that the learned Single Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TVS Motor Company Ltd., vs. The State of Tamil Nadu and Ors., reported in 2019(13) SCC 403. Similarly in the case of Nelco Limited vs. The Union of India and Ors., reported in 2020(36) GSTL 24, the Division Bench of Bombay High Court, in paragraph 42 has held as under; 42. The decision of the Supreme Court in the case of Collector of Central Excise, Pune v. Dai Ichi Karkaria Ltd., MANU/SC/0467/1999; 1999 (112) ELT 353 (SC) cited by the petitioner refers to MODVAT credit and in deciding a corelation of the raw material and final product. The Apex Court held that it is not as if the credit can be taken only on the final product manufactured out of a particular raw material in which the credit is related. It was held that the credit may be taken on a final product on the very day it has become available. It is in this context, the nature of MODVAT credit was held to be indefeasible. The learned Additional Solicitor General has rightly distinguished this decision by pointing out that this decision does not consider the contingency of time limit on availment of credit, and also not in a transitionary provision. Under the impugned Rule, the input credit has been denied pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
