TMI Blog2022 (12) TMI 603X X X X Extracts X X X X X X X X Extracts X X X X ..... ugned orders rejecting their declaration as soon as it was communicated to them before the so called expiry period under SVLDRS,2019, could it be said that the petitioners were barred from proceeding further and the Court was barred from passing a final order? In our view, the writ petitions could not have been dismissed. If the Declarations were filed for settling the tax case under SVLDRS, 2019 in time but were rejected at the threshold, an applicant whose application was rejected cannot be left without any remedy as the right to have the case settled under the SVLDRS, 2019 is a substantive right. - In our view, the respective Writ petitions cannot be rejected in limine. Validity of show cause notice - Proper officer - HELD THAT:- the second respondent, the Principal Additional Director General, Directorate General of Goods and Service Tax Intelligence, is a Central Excise Officer. The second respondent was therefore competent to issue the impugned Show Cause Notice No.47 of 2020 dated 25.09.2020 under Section 73 of the Finance Act, 1994 to the petitioner. Whether the Show Cause Notice makes out a case for evasion of tax, warranting invocation of the provisions of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tification for the aforesaid period alone. No quantification was provided by the petitioner for the period between March 2016 to March 2017 for the purpose of definition under Section 121(r) r/w Section 123(c) Section 124(1)(d). The disability under Section 125(1)(e) of SVLDRS, 2019 is attracted for the period between March 2016 to March 2017 and therefore as an errant taxpayer whose tax liability has not been determined, the petitioner is not entitled to avail the benefit of SVLDRS, 2019 for the period between March 2016 to March 2017. - W .P.Nos.11785, 12957 of 2020 & W.P.Nos.3320 & 3322 of 2022 and W.M.P.Nos.16034/2020 & 3453/2022 - - - Dated:- 30-11-2022 - HONOURABLE MR. JUSTICE S.VAIDYANATHAN AND HONOURABLE MR. JUSTICE C.SARAVANAN For Appellant : Mr.G.Natarajan For R2 : Mr. A.P. Sreenivas Senior Standing Counsel Assisted by Mr. H. Siddarth Junior Standing Counsel For Appellant :Mr. Vijay Narayanan Senior counsel Assisted by Mr. Abishek Jenasenan For R2 : Mr.Rajinish Pathiyil SPC COMMNON JUDGMENT By this common order, all these four (4) Writ Petitions are being disposed. W.P.No.11785 of 2020 has been filed by M/s. Win Power Engineering (P) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdiction was assumed to issue the Show Cause Notice. 8. These writ petitions have been filed for the following reliefs:- W.P.No.3320 of 2022 W.P.No.3322 of 2022 For issuance of a Writ of Certiorari, to call for the records pertaining to the impugned Show Cause Notice dated 25.09.2020 bearing reference SCN No.47/2020 in F.No. INV/ DGCEI/ CHZU/ ST/ 150/ 2016/ 7110 issued by the second respondent Principal Additional Director General, Directorate General of Goods and Service Tax Intelligence, Chennai Zonal Unit and quash the same. For issuance of a Writ of Certiorari, to call for the records relating to the Notification No.22/2014-Service Tax dated 16.09.2014 issued by first respondent Secretary, Department of Revenue, Ministry of Finance, Union of India and quash the same. 9. By an order dated 23.02.2022, a learned Single Judge of this Court directed the Registry to list all these four writ petitions together for a common disposal. 10. Thereafter, the learned Single Bench has referred these four Writ Petitions to be listed before the Division Bench vide order dated 09.03.2022 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled by the petitioner Vital Rao Jayaprakash against The Designated Committee under the SVLDRS, 2019 and the final decision of the learned Single Judge in W.P.No.12635 of 2020 vide order dated 17.09.2020. They read as under:- Prayer Order For issuance of a Writ of Certiorarified Mandamus, to call for the records pertaining in Form SVLDRS-1 bearing ARN No. LD1401200001786 dated 14.01.2020 on the file of the First Respondent herein and to quash the entry made rejecting the Declaration on the grounds of ineligibility as illegal unconstitutional and consequently direct the First respondent to consider and accept the declaration filed by the petitioner against the Audit quantification of admitted duty to the tune of Rs.32 08 952/- as per the provisions of the Act and the Circulars issued by the department under the Scheme. The impugned order is dated 14.01.2020 and the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 was itself in force only till 30.06.2020. The Writ petition has been filed on 08.09.2020 long after the closure of the scheme. This writ petition is hence not maintainable and, dism ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anatory and it reads as under:- In respect of undergoing investigation relating to the non-payment of service tax, the documents, as mentioned below is submitted herewith for quantification of service tax liability. 13. Thus, the letter dated 13.06.2019 would clearly indicate that the appellant furnished certain documents only for quantification of the service tax liability and there is no whisper that he intended to avail the benefits of the scheme. Secondly, the letter also indicates that as on 13.06.2019, the service tax liability of the appellant has not been quantified, which is one of the preconditions to avail the benefits of the scheme. Therefore, the rejection of the application of the appellant by the first respondent herein is proper. 14. Even otherwise, as rightly pointed out by the learned Judge, the writ petition itself was filed after the period specified under the scheme came to an end, while so, no direction could be issued to the respondents to entertain the application of the appellant under the scheme. In such view of the matter, we do not find any illegality in the order passed by the learned Judge dismissing the writ petition of the appellant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned Judge dismissing the writ petition of the appellant. 6. By citing the said decision of the Hon'ble Division Bench, since the learned Senior Panel Counsel raised the preliminary objections with regard to the maintainability of these writ petitions, which is stoutly opposed by the learned counsel appearing for the petitioners/assessees, I am of the view that, since there has been an order passed by the Hon'ble Division Bench, where, according to the learned counsel for the petitioners that the limitation extended by the Hon'ble Supreme Court of India by suo-moto writ petition with effect from 15.03.2020, which has been time and again extended up to recently with a rider of extension of further 90 days, has not been brought to the notice of the Hon'ble Division Bench, that issue since has not been taken into account before giving this view of the Hon'ble Division Bench, confirming the stand taken by the writ court in the said writ appeal, the issue can be re-agitated. 7. In order to resolve this controversy, I feel that the said issue now raised by both sides on the limitation as well as the maintainability of these writ petitions can best be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om passing a final order? In our view, the writ petitions could not have been dismissed. 25. It is important to bear in mind the object of SVLDRS,2019 which is discernible from a reading of the statement by the Finance Minister, Nirmala Sitharaman: GST has just completed two years. An area that concerns me is that we have huge pending litigations from pre-GST regime. More than Rs.3.75 lakh crore is blocked in litigations in service tax and excise. There is a need to unload this baggage and allow the business to move on. I, therefore, propose, a Legacy Dispute Resolution scheme that will allow quick closure of these litigations. I would urge the trade and business to avail this opportunity and be free from legacy litigations. 26. The Statement of Objects and Reasons to Chapter V of the Finance Bill, 2019 reads as under:- Clauses 119 to 134 of Chapter V of the Bill seeks to provide for SabkaViswas (Legacy Dispute Resolution) Scheme, 2019. The Scheme is a one time measure for liquidation of past disputes of Central Excise and Service Tax as well as to ensure disclosure of unpaid taxes by a person eligible to make a declaration. The Scheme shall be enforced by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Board and such cases can be processed manually by the concerned Designated Committees upon fulfilment of the following conditions:- (i) The order of the Hon ble High Court has been accepted by the Concerned Commissionerate. (ii) The Ld ASG/Sd. Counsel who had represented the case before the Hon ble Court has opined to accept the said order of the Hon ble Court. 4. All such declarations that have been processed manually may be reported to the O/o DG (Systems) by the 15th day of the succeeding month, for the purpose of record. 30. Incidentally, though the decision of the learned Single Judge in W.P.No.12635 of 2020 was affirmed by the Division Bench in Vital Rao Jayaprakash Vs. The Designated Committee, the Division Bench of this Court entertained the appeal on merits and rejected the case of the petitioner therein on merits. 31. Only a passing reference was made by the Division Bench of this Court in its order dated 23.02.2022 in W.A.No.2450 of 2021 while dismissing the appeal against the order of the learned Single Judge in W.P.No.12635 of 2020 remarking that the writ petition was not maintainable as the scheme had come to an end on 30.6.2020. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the circumstances, at best cannot be denied without going into merits only on account of latches. 41. Though, there is a delay of eight to nine months in filing these writ petitions by the respective petitioners and in approaching this Court after the impugned orders were passed rejecting their Declarations filed under SVLDRS, 2019, we are of the view, if on facts, the petitioners have a legitimate case for settling the dispute under the SVLDRS, 2019, the substantive benefit to have the case settled under the SVLDRS, 2019 cannot be denied to them. These writ petitions have been filed perhaps on account of the show cause notices which were issued to them after the two writ petitions were filed. 42. In our view, the delay in approaching this Court is not so enormous, so as to, disqualify the respective petitioner, from redressing their grievance before us under Art.226 of the Constitution of India. 43. Furthermore, there was no requirement for the case to bereferred to the Division Bench of this Court on account of orders passed by the Hon ble Supreme Court extending the period of limitation due to outbreak of Covid-19 pandemic. 44. We therefore answer the reference i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 16.09.2014 along with the Show Cause Notices issued to the respective writ petitioners therein were challenged. 54. By an order dated 17.06.2022, W.P.No.12853 of 2020 and etc.were dismissed. The challenge to the impugned notification were held to be without merits and the petitioners therein were directed to appear before the authority which issued the Show Cause Notices. Operative portion of the order reads as under:- 177. Thus, officers of Directorate General of Central Excise Intelligence are Central Excise Officers for the purpose of Section 2(b) of the Central Excise Act, 1994. They are empowered to exercise power pan India under Notification No.38/2001-C.E. (N.T), dated 26.06.2001. 178. Therefore, the other ground of challenge to the impugned Notification No.22/2015-ST dated 16.9.2014 that pan India powers have been vested with the officers from the Directorate of Central Excise Intelligence (DGCEI) [presently The Directorate of GST Intelligence] and contrary to the restriction under Rule 3 of the Service Tax Rules, 1944 also fails. 179. The power of the Board under Notification 22/2014-ST dated 6.09.2014 cannot be read in a restricted manner. There is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Intelligence Inspector of Central Excise 182. Later in exercise of the powers conferred by Section 37A of the Central Excise Act, 1944, the Central Government, by virtue of Notification No.11/2007-C.E. (N.T.), dated 01.03.2007, directed that the powers exercisable by the Central Board of Excise and Customs under the provisions of Rule 3(2) of the Central Excise Rules, 2002, shall also be exercised by the Chief Commissioner of Central Exercise for the purpose of adjudication of notices issued under the provisions of the Act or the Rules made thereunder within his jurisdiction. 183. By virtue of Notification No.16/2007-S.T., dated 19.04.2007, in exercise conferred by Section 83A of the Finance Act, 1994 read with Rule 3 of the Service Tax Rules, 1994, the Central Board of Excise and Customs appointed the Officers of the Central Excise specified in Column (2) of the Table therein and invested with them all the powers of Central Excise Officer specified in Column (3) of the Table to be exercised within such jurisdiction and for such purposes specified in Columns (4) (5) of the Table attached to the Notification. The said Table is reproduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise and Customs vide Notification No.11/2007-Central Excise (N.T.) dated 01.03.2009, No.16/2007-Service Tax dated 19.04.2007 and No.6/2009 - Service Tax dated 30.01.2009. 187. The Central Government directed that the powers exercisable by the Central Board of Excise and Customs under Rule 3 of the Central Excise Rules, 2002 and Rule 3 of the Service Tax Rules, 1994, may be exercised by the following officers for the purpose of assignment of adjudication of notices to show cause issued under the provisions of the Central Excise Act, 1944 or the Finance Act, 1994, to the Central Officers subordinate to them:- a. The Principal Chief Commissioner of Central Excise and Service Tax; or b. The Chief Commissioner of Central Excise and Service Tax . 188. Several other Notifications were also issued before and after the impugned Notification was issued are detailed as under:- S.No. Date Notification CEA 1944 CER 2002 F.A. 1994 STR, 1994 Remarks 1 16/09/14 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hort-paid or erroneously refunded. 192. As mentioned above, under Rule 3 of the Service Tax Rules, 1994, the Board can appoint any other officer to exercise power within the local limits . However, that would not mean that the officers of Directorate of Central Excise Intelligence (DGCEI) [presently The Directorate of GST Intelligence] who are already Central Excise Officers under Notification No.38/2001-C.E. (N.T), dated 26.06.2001 for whole of India cannot exercise power pan India. Notification No.22/2014-ST dated 6.09.2014 is to be read in conjunction with Notification No.38/2001- C.E. (N.T), dated 26.06.2001. 193. Therefore, the 2nd argument advanced on behalf of the petitioners as far as jurisdiction to issue Show Cause Notice cannot be accepted. 194. Therefore, the argument of some of the counsel for the petitioners that the officer of Directorate of Central Excise Intelligence (DGCEI) [presently The Directorate of GST Intelligence] are not Central Excise Officer and cannot exercise function Pan India cannot be accepted. 195. No restriction can be inferred on the powers of the Board while appointing the officers of the Directorate of Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Designated Committee ), the relevant authority under the Sabka Vishwas (Legacy Disputes Resolution) Scheme, 2019 ( SVLDRS, 2019 in short). Before, proceeding further, it will be useful to refer to the object of the SVLDRS, 2019. 62. The SVLDRS, 2019 was introduced in the Union Budget under Chapter V of the Finance Bill, 2019 presented on 05.07.2019. It was introduced to de-clog the system and to pave a way to recover the tax dues of errant, recalcitrant taxpayer and those taxpayers who were in litigation with the government. 63. Under the SVLDRS, 2019, an amnesty scheme was devised to facilitate such tax payers to pay a percentage of the tax dues under specified central laws which were earlier subsumed under the respective GST Acts of 2017 with effect from 01.07.2017. 64. The intent behind the scheme was to enable businesses to have a fresh start with implementation of GST and for the authorities to close the case provided , such tax payer was eligible to opt for the SVLDRS, 2019. 65. The dispute resolution component of the scheme was aimed to liquidate the legacy cases locked up in litigation at various fora. While, the amnesty component gives an opportunity to thos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure.- (i) after being subjected to any enquiry or investigation or audit; or (ii) having filed a return under the indirect tax enactment, wherein he has indicated an amount of duty as payable, but has not paid it; (g) who have filed an application in the Settlement Commission for settlement of a case; (h) persons seeking to make declarations with respect to excisable goods set forth in the Fourth Schedule to the Central Excise Act, 1944. 71. Thus, SVLDRS, 2019 seeks to achieve twin objectives. It allows the department to close pending cases and recover a percentage of the tax/duty arrears/dues from those assesses who are in arrears and also allows them to have an amnesty provided the case of the assessee does not fall within the exception in Section 125 of the Act. 72. The Designated Committee consists of the Commissioner of GST Central Excise and Joint Commissioner of GST Central Excise. The Designated Committee has rejected the applications filed by the respective petitioners under the provisions of SVLDRS, 2019. 73. The reason for rejecting the application filed by the respective petitioners in W.P.Nos.11785 12957 of 2020 are as follows:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the SVLDRS, 2019 on 09.11.2019 in ARN No.0911190000206 for the period between April 2017 to June 2017. The application was earlier rejected on the ground of ineligibility stating that the audit quantified the tax dues after 30.06.2019. 81. The petitioner thereafter filed a fresh a Declaration once again for settling the dispute under the SVLDRS, 2019 on 13.01.2020 for the same period once again perhaps on account of extension of time for filing Declaration vide Notification No. 1/2020 C.E. (N.T.), dated 14.05.2020. The said Declaration also came to be rejected vide the impugned order for the same reason as was stated when the earlier Declaration was rejected. 82. In W.P. No.12957 of 2020, a summons was issued on 23.04.2019 to the petitioner to appear before the authority thereunder on 07.05.2019. The petitioner was called upon to submit various documents. In particular, the petitioner was asked to submit documents relating to the services rendered to M/s. Army Welfare Housing Organisation (AWHO) in addition to details of issue of Transfer of Development Rights (TDR) and service tax liability for the period 201415 to June 2017. 83. The petitioner vide its reply dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 2019) read with SVLDRS Rules, 2019. 88. It is the specific case of the respective petitioners that the tax dues declared by them in their communications dated 24.10.2018 and 07.05.2019 satisfied the definition of tax dues within the meaning of Section 123(c) of the SVLDRS, 2019 as tax dues were quantified before 30th June 2019 within the meaning of Section 124(1)(d) of SVLDRS, 2019. 89. It is further case of the respective petitioners that the applications under SVLDRS, 2019 have been wrongly rejected by the Designated Committee without even looking at the quantification by them on 24.10.2018 and 07.05.2019. 90. It is submitted that defence of the respondent that there was no quantification of tax dues on or before 30thJune, 2019 was misconceived. It is submitted that the Declaration filed by the respective petitioners have been wrongly rejected as the disqualification under Section 125(1)(e) of the SVLDRS, 2019 was not attracted. Rather, it was submitted that the respective petitioners came within the purview of the exceptions provided in the aforesaid provisions. 91. It is submitted that the Central Board of Indirect Taxes and Customs, by Circular No.1071/4/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Bom.) 95. The petitioners, therefore pray for allowing the writ petition with a direction to the respondent Designated Committee to issue a discharge certificate in Form SVLDRS-4. 96. In W.P.No.11785 of 2020 the respondents are represented by Mr.A.P.Srinivas, learned Senior Standing Counsel and Mr.H.Siddarth, Junior Standing Counsel (Customs and GST) for the second respondent in W.P.No.11785 of 2020. In W.P.Nos.3320 3322 of 2022 the respondents are represented by Mr.RajnishPathiyil, the learned Senior Panel Counsel for the respondent in W.P.Nos.12957 of 2020 and for the first and second respondent in W.P.Nos.3320 3322 of 2022. 97. Mr.A.P. Srinivas, the learned Senior Standing Counsel has relied on the following decisions:- i. JSW Steel Limited Vs. Union of India and others, 2021 SCC OnLine Bom 3584 : (2022) 96 GSTR 184. ii. No.1 World Wide Express Pvt. Ltd. Vs. Union of India and others, 2021 SCC OnLine Del 4418 : (2022) 103 GSTR 310. 98. The learned Senior Standing Counsel has also drawn attention to certain E-mail exchanges between the petitioner and the Department to demonstrate that there was no quantification of tax dues by the petitioner in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Senior Panel Counsel submitted that at the time of introduction of SVLDRS, 2019, the respondents had also issued a clarification in the form of Frequently Asked Questions (FAQs). A specific reference was made to Question No.55 and answer given therein which reads as under:- Question No. 55 Answer I have declared sums of duty as payable by me in multiple returns but not paid the same. Do I need to file a single declaration for all these returns or a separate declaration for each return? For administrative convenience, a single declaration may be filed indicating separately the details of each such return in the declaration. However, it will not have any impact on the applicable tax relief. In other words, for the purpose of application of tax relief, each such return will be taken individually even though a single Estimate/Statement and Discharge Certificate shall be issued for a declaration. 107. The learned Senior Panel Counsel submitted that the application was rejected by the Designated Committee based on the report dated 28.02.2020 received from the Director General for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are apparent contradictions in the SVLDRS, 2019. It results in benefits being conferred on only those whose cases do not attract the disqualifications in Section 125 of SVLDRS,2019. 117. As per Section 125 of SVLDRS, 2019, all persons who were in arrears of tax/duties under the specified central indirect tax enactment were eligible to file declaration under the SVLDRS, 2019to settle their case. 118. However, Section 125 of SVLDRS, 2019 is subject to certain exceptions. Those persons who fall under the exceptions are specifically excluded from availing the benefit of amnesty under the SVLDRS,2019. 119. Unless, the case of the respective petitioners fall within the exception to exception in Section 125 of SVLDRS, 2019, the question of their application/Declaration passing the first threshold for scrutiny by the Designated Committee would not arise. 120. The challenge to the rejection of the applications filed under SVLDRS, 2019 by the respective petitioners are similar. The defence of the respondents in W.P.No.11785 and W.P.No.12957 of 2020 are also similar. 121. As mentioned elsewhere, a Declaration in Form SVLDRS-1 could be made only by a person who was eligible to f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue in electronic form, an estimate of the amount payable by the declarant within thirty days of the date of receipt of the declaration. (3) After the 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: Provided that on sufficient cause being shown by the declarant, only one adjournment may be granted by the designated committee. (4) After hearing the declarant, a statement in electronic form indicating the amount payable by the declarant, shall be issued within a period of sixty days from the date of receipt of the declaration. (5) The declarant shall pay electronically through internet banking, the amount payable as indicated in the statement issued by the designated committee, within a period of thirty days from the date of issue of such statement. (6) Where the declarant has filed an appeal or reference or a reply to the show cause notice against any order or notice giving rise to the tax dues, before the appellate forum, other than the Supreme Court or the High Court, then, notwithsta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the months covered in the half-yearly return. 7A. Returns in case of taxable service provided by goods transport operators and clearing and forwarding agents : Notwithstanding anything contained in rule 7, an assessee, in case of service provided by 7B. Revision of Return (1) An assessee may submit a revised return, in Form ST-3, in triplicate, to correct a mistake or omission, within a period of [ninety days] from the date of submission of the return under rule 7. (2) Every assessee shall submit the half yearly return by the 25th of the month following the particular half-year. [Provided that the Form 'ST-3' required to be submitted by the 25th day of October, 2012 shall cover the period between 1st April to 30th June, 2012 only:] [Provided further that the Form ST-3 for the period between the 1st day of July 2012 to the 30th day of September 2012,shall be submitted by the 25th day of March, 2013.] (Provided also that the return for the period from the 1st day of April, 2017 to the 30th day of June, 2017, shall be submitted by the 15th day of August 2017, in Form ST-3 or ST-3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovember, 1997 to 2nd day of June, 1998; and (b) clearing and forwarding agents for the period commencing on and from the 16th day of July, 1997 to 16th day of October, 1998, shall furnish a return within a period of six months from the 13th day of May, 2003, in Form ST-3B alongwith copy of Form TR-6 in triplicate, failing which the interest and penal consequences as provided in the Act shall follow.] Explanation .- Where anassessee submits a revised return, the relevant date for the purpose of recovery of service tax, if any, under section 73 of the Act shall be the date of submission of such revised return. (2) An assessee who has filed the annual return referred to in sub-rule (3A) of rule 7 by the due date may submit a revised return within a period of one month from the date of submission of the said annual return. 128. Returns can also be filed beyond the period prescribed in the above Rules. To implement the requirement of Section 70 of the Finance Act, 1994, Rule 7C has been provided in Service Tax Rules, 1994. Rule 7C of the Service Tax Rules, 1994 reads as under:- (1) Where the return prescribed under rule 7 is furnished ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Definition Tax Dues Relief 121. In this Scheme, unless the context otherwise requires,- .. . amount in arrears means the amount of duty which is recoverable as arrears of duty under the indirect tax enactment, on account of- i) no appeal having been filed by the declarant against an order or an order in appeal before expiry of the period of time for filing appeal; or ii.an order in appeal relating to the declarant attaining finality; or iii. the declarant having filed a return under the indirect tax enactment on or before the 30th day of June, 2019, wherein he has admitted a tax liability but not paid it; 123. For the purposes of the Scheme, tax dues means- (a) (b) . (c) . (d) (e) where an amount in arrears relating to the declarant is due, the amount in arrears. 124. (1) Subject to the conditions specified in sub-section (2), the relief available to a declarant under this Scheme shall be calculated as follows:- (a) .. (b) . (c) where the tax dues are relatable to an amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) .. (b) .. (c) . (d) where the tax dues are linked to an enquiry, investigation or audit against the declarant and the amount quantified on or before the 30th day of June, 2019 is- (i) rupees fifty lakhs or less, then, seventy per cent. of the tax dues; (ii) more than rupees fifty lakhs, then, fifty per cent. of the tax dues; 135. For clear understanding of cases where there is quantification before 30.06.2019 in the case of a declarant where an enquiry or investigation was pending, the following table given below:- ENQUIRY OR INVESTIGATION OR AUDIT 125. (1) All persons shall be eligible to make a declaration under this Scheme except the following, namely:- (e) who have been subjected to an enquiry or investigation or audit and the amount of duty involved in the said enquiry or investigation or audit has not been quantified on or before the 30th day of June, 2019; Definition Tax Due Relief 121. In this Scheme, unless the context otherwise requires,- (g) audit means any scrutiny, verification and checks carried ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30.06.2019 in the light of letters dated 24.10.2018 in the case of the petitioner in W.P.No.11785 of 2020 and by letter dated 07.05.2019 in the case of the petitioner in W.P.No.12957 of 2020. And also that the audit and investigation were in terms of the definition in Section 121(g) and (m) of the SVLDRS, 2019. 139. Whereas, it is the case of the revenue/respondent that the situation of the petitioner is covered by Section 125(1)(e) on the ground that the petitioner was being investigated and the amount of duty involved (tax) has not been quantified on or before the cut off date of 30.06.2019. 140. Before, proceeding further, as to whether the petitioners are indeed entitled to relief under 124(1)(d) of the SVLDRS, 2019, we shall briefly refer to the other category namely voluntary disclosure where, though an application can be filed, no relief is available barring immunity to penalty and interest etc. 141. In case of voluntary disclosure in respect of an amount in arrears of tax, such a person is not eligible to file a declaration under SVLDRS, 2019 in terms of Section 125(1)(f)(ii) other than the following persons: 125. (1) All persons shall be eligible to make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elief if there was quantification after 30.06.2019. 147. Only if the tax due are linked to an Enquiry or Investigation or Audit where it was quantified on or before the 30th day of June 2019, a Declaration could have been filed. 148. However, it is not the self declared quantification of a Declarant of tax dues which will entitle the benefit of the aforesaid scheme. The scheme brings a closure to the tax dispute with issuance of certificate under Section129 of SVLDRS, 2019. It has to be a quantification which ought to have been accepted by the Investigating Wing or Audit Wing of the Department. 149. The question of issuing statement by the Committee under Section 127 read with Rule 6 of the SVLDRS Rules, 2019 would arise only where the application filed itself falls within the four corners of Section 124(1)(d) as extracted above. Only where there was quantification of tax or duty in arrears, the scheme was applicable. 150. We now proceed to deal with the application filed under the SVLDRS, 2019 by the petitioner in W.P.No.11785 of 2020 (M/s. Win Power Engineering Pvt. Ltd.) for the second time on 13.01.2020 and its rejection in the system on the same date. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Amount 04.02.2019 58,00,000 17.05.2019 49,88,041 155. In all the petitioner claims to have paid a sum of Rs.1,71,47,330/- (Rs.1,60,51,759/- + input tax liability of Rs.10,95,571/-) leaving a balance of Rs.27,38,759/- as tax due. 156. During the course of audit, the petitioner however did not furnish the details in response to the request of the Audit Wing Department. Specifically, by e-mail dated 28.08.2019, the petitioner was called upon to furnish ST-3 Returns of April 2017 to June 2017 on the amount of reimbursed expenditure, collected tax but not paid. The petitioner replied and furnished only the invoices on 30.08.2019. Under these circumstances, once again reminder was sent on 04.09.2019 for the following details:- Most Urgent/Reminder-X Kind Attn.: Mr.T.K.Kumar, Director Inspite of repeated reminder email dated 12.10.2018, 13.10.2018, 24.10.2018, 17.12.2018, 15.02.2018, 15.02.2019, 12.02.2019, 28.02.2019, 28.02.2019, 5.3.2019, 25.03.2019, 8.4.2019, 17.6.2019, 1.7.2019, 3.9.2019 and phone calls (last 8 months). You have not submitted the req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Amount in Rs. 27.04.2017 5,38,718 04.02.2019 58,00,000 22.10.2019 20,600 31.05.2017 47,25,000 17.05.2019 49,88,041 19.11.2019 4,50,557 19.11.2019 29,565 Total 52,63,718 1,07,88 ,041 5,00,722 160. The details furnished by the petitioner in its communication dated 24.10.2018 and the information in the Show Cause Notice dated 26.02.2022indicate that the petitioner did not make a complete disclosure. There was no proper quantification of the tax due by the petitioner for the entire period between March 2016 to June 2017. 161. If the amount quantified by the petitioner on 24.10.2018 and later declared in the declaration filed under SVLDRS, 2019, and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lier starting from March 2016 to June 2017. To that extent, the petitioner is not entitled to settle the case. W.P.No. 12957 of 2020 167. We shall now take up W.P.No.12957 of 2020. 168. The petitioner has been issued the Show Cause Notice No.47 of 2020 dated 25.09.2020by the second respondent, the Principal Additional Director General, Directorate General of Goods and Service Tax Intelligence. 169. The petitioner has challenged Show Cause Notice No.47 of 2020 dated 25.09.2020by the second respondent, the Principal Additional Director General, Directorate General of Goods and Service Tax Intelligence in W.P.No. 3320 of 2022. The petitioner has also challenged Central Government Notification No.22/2014-Service Tax dated 16.09.2014 in W.P.No.3322 of 2022. 170. We have already held that the challenge to Central Government Notification No.22/2014-Service Tax dated 16.09.2014 is without merits. Therefore, challenge to the Show Cause Notice No.47 of 2020 dated 25.09.2020 issued by the Principal Additional Director General, Directorate General of Goods and Service Tax Intelligence, the second respondent has also been held to be without merits. Therefore, both W.P.Nos.332 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 63 6,97,11,477 36,18,614 3. Regular Service Tax collected and not paid for 2014-15 to 2017-18 (upto June 2017) 28,49,01,991 28,49,01,991 Total 37,08,90,828 37,84,41,930 75,51,102 176. A reading of the Show Cause Notice issued to the petitioner and the above charts reveal that the petitioner has disputed that it was not liable to pay service tax on a part of the service tax demanded towards Transfer of Development Right (TDR) and construction services provided to M/s. Army Welfare Housing Organisation (AWHO) alone. 177. The aforesaid sum of Rs.37,08,90,328/- quantified by the petitioner on 07.05.2019 in response to the summons dated 23.04.2019 covers the purported liability of the petitioner for the period between 2014-15 to June 2017 as against Rs.37,84,41,930/- as quantified in the Show Cause Notice No.47 of 2020 dated 25.09.2020 issued by the Principal Additional Director General, Directorate General of Goods and Service Tax Intell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded to M/s.Army Welfare Housing Organisation (AWHO) alone. 181. Thus, as against the admitted tax liability of Rs.37,08,90,828/-, the petitioner has purportedly paid a sum of Rs.23,84,58,634/- partly through cash for a sum of Rs.12,31,98,712/- and the balance through Cenvat account for a sum of Rs.11,52,59,922/-. 182. A reading of the show cause notice also indicates that for the period from April 2014 to December 2019 a sum of Rs.12,54,89,142/was paid in cash and the balance of Rs.11,54,69,555/- was paid through Cenvat account which is disputed by the Department. 183. The above quantification of tax liability is before the commencement of investigation by DGGI on 23.04.2019. 184. The petitioner has made a partial quantification of the tax liability. Only a sum of Rs.75,51,102/- on account of TDR and services rendered to AWHO as detailed above in the Table was not quantified either in the ST-3 Returns and/or in the letter dated 7.5.2019 before the implementation of SVLDRS,2019. 185. However, it would not disentitle the petitioner from the purview of SVLDRS, 2019 for the amount remaining unpaid as per the admission in the ST-3 Returns prior to the implementation of SV ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.02.2022 issued by the Additional Commissioner of GST and Central Excise as proposed or as per corrigendum to the aforesaid show cause notice and pass order within a period of 90 days from the date of receipt of a copy of this order or within 90 days of corrigendum. iv. Needless to state, the petitioner shall be heard before orders are passed in the aforesaid show cause proceeding. W.P.No.12957 of 2020 i.W.P.No.12957 of 2020 is allowed by directing the respondents to accept the declaration filed under SVLDRS, 2019 for the tax dues, determined and quantified by the petitioner as payable for the period between 2014-15 to 2017-18 (upto June 2017) by accepting the Declaration in Form SVLDRS-I filed by the petitioner on 31.12.2019 and settle the case by issuing appropriate discharge certificate in accordance with the provisions of SVLDRS, 2019 to the extent there was a quantification on 7.5.2019 for the amount of tax due that had remained unpaid before the implantation of SVLDRS,2019 within a period of 30 days from the date of receipt of a copy of this order. ii. For the balance amount covered by the Show Cause Notice No.47 of 2020 dated 25.09.2020 issued by the Princip ..... X X X X Extracts X X X X X X X X Extracts X X X X
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