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TMI Blog2022 (3) TMI 322X X X X Extracts X X X X X X X X Extracts X X X X ..... rari to quash the statement dated 6th February, 2020 and the notice of demand dated 26th July, 2021 and for issuance of a mandamus to the respondent to withdraw the said statement as well as the notice of demand and consequently give effect to the Form SVLDRS 1 dated December 12, 2019 filed by the appellant and issue statement under Section127 of the scheme in Form SVLDRS 3. The learned Single Bench by the impugned order dismissed the writ petition solely on the ground that the appellant had approached the Court after expiry of the scheme, which expired on 30th June, 2020. The correctness of the order has been questioned before in this appeal. 3. We have heard Dr. Samir Chakraborty, learned senior counsel appearing for the appellant and Mr. Bhaskar Prasad Banerjee, learned counsel for the respondents. 4. The appellant / assessee was issued an order of adjudication dated 24th February, 2009 demanding service tax in respect of the transactions done by the appellant. The said order was challenged by filing an appeal before the Customs Excise and Service Tax Appellate Tribunal, Kolkata (in short the 'Tribunal'). In the said appeal, an application for stay of the order in original was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n indicated as "0' (zero). 7. It appears that there was no written orders communicated to the appellant as to why the pre-deposit amount still continues to be reflected as "0" in spite of the appellant having pointed out the reasons for disagreement by filing an application under Section 127 of the Act read with Rule 6 of the Rules, which was accepted and the appellant was also granted opportunity to file the written submissions. 8. The appellant, therefore, having left with no other option submitted a representation on 19th February, 2020 to the Designated Committee once again pointing out the error and also enclosing all the documents, which were already placed before the Committee along with the application under Section 127 of the Act. No order was passed by the Designated Committee but the appellant was communicated with a notice of demand dated 26th July, 2021. To be noted that the scheme came to close on 30th June, 2020. The demand dated 26th July, 2021 even if it is taken to be a deemed rejection of the application under Section 127 of the Act, it ought to have been communicated to the appellant well before the close of the scheme, i.e. 30th June, 2020, which the Designat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-deposit made by the appellant pursuant to the orders passed by the Tribunal as condition precedent for grant of interim order. Further, the Central Board of Indirect Tax and Customs was conscious of the fact that throughout the country several writ petitions have been filed in various High Courts pointing out the errors, which were apparent in the statement issued by the department pursuant to the declaration filed by the assessee. 11. This necessitated a circular to be issued by the Central Board dated 17th March, 2021 in C.B.I. & C. Instruction No.1/2021-CX. For better appreciation, the same is quoted hereinbelow:- "C.B.I. & C. Instruction No.1/2021-CX, dated 17-3-2021 F.No.267/41/2021-CX.8 Government of India Ministry of Finance (Department of Revenue) Central Board of Indirect Taxes & Customs, New Delhi Subject: Manual processing of declaration filed under SVLDRS, 2019 in order to comply with the directions of the Hon'ble High Courts-Regarding. References are being received in the Board from the CGST Zones in respect of Writ petitions filed by aggrieved declarants before various Hon'ble High Courts against the decision of the concerned Designated Committees taken und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid decision in the following manner:- "We have heard the learned counsel for the parties at length. Before we examine the factual matrix, we shall take note of certain provisions of the SVS Scheme. Under Section 120(k) the 'designated committee' has been defined to mean the committee referred to in Section 125. Section 122 defines 'tax due' for the purposes of the scheme. In the case in hand, the tax dues is not in dispute. Section 123 enumerates the reliefs available under the scheme; Section 124 speaks about declaration under the Scheme; Section 126 deals with the issue of statement by Designated Committee and Section 127 deals with rectification of errors. As Section 127 would have a bearing on the case on hand, the same is quoted hereinbelow: "Section 127. Within thirty days of the date of issue of a statement indicating the amount payable by the declarant, the designated committee may modify its order only to correct an arithmetical error or clerical error, which is apparent on the face of record, on such error being pointed out by the declarant or suo motu, by the designated committee." The assessee made an application electronically as required under the scheme of 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Designated Committee to decide the claim made under the said scheme starts only upon an application being made............ On this issue it is beneficial to take note of the decision of the High Court of Gujarat at Ahmedabad in the case of Hitech Projects Private Limited vs. Union of India reported in 2020(39) GSTL 388. More or less identical situation was considered by the Hon'ble Division Bench and the communication rejecting the application was quashed and the Designated Committee was directed to decide the application afresh. Further, in the case of M/s. Sobha Limited vs. Union of India & Anr. (CWP 10804-2020 (O & M) dated 25.09.020 the Hon'ble Division Bench of Punjab and Haryana High Court at Chandigarh had considered an identical issue and the order of rejection of the declaration filed in Form SVLDRS-1 was set aside and direction was issued to the designated authority to decide the application afresh. Identical direction was issued in the case of Vaishali Sharma vs. UOI & Anr. reported in MANU/DE/1529/2020. In the said decision the Court went a step further to observe that an opportunity of hearing must have been given to the assessee before rejecting the declara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it goes without saying that an order with reasons is required to be passed. Probably, the electronic Form SVLDRS 3 does not specifically provide a column but however, we find from the said statutory form, there is a column indicated as "remarks". If for some reason the Designated committee was of the opinion that the pre-deposit amount of Rs. 20 lakhs cannot be reckoned (which cannot be done by the Designated Committee as the statute provides for the same), the Designated Committee was bound to give reasons in the remarks column while issuing Form SVLDRS 3. 15. Therefore, the decision of the Designated Committee has to be held to be devoid of reasons and outcome of total nonapplication of mind. Thus, we are fully satisfied that the appellant is entitled to the relief sought for. 16. In the result, the appeal is allowed. The order passed in the writ petition is set aside. Consequently, the writ petition is allowed. The Form SVLDRS 3 is set aside and the Designated Committee is directed to reckon the pre-deposit of Rs. 20 lakhs made by the appellant pursuant to the directions issued by the Tribunal and issue fresh Form SVLDRS 3. 17. The learned senior standing counsel appearing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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