TMI Blog2023 (1) TMI 546X X X X Extracts X X X X X X X X Extracts X X X X ..... DRS Rule, it would transpires that the Designated Committee constituted under the Scheme was only required to verify the correctness of the declaration filed by the declarant and estimate the amount payable by such declarant for availing the benefit of the said Scheme, Thus, Designated Committee has not been vested with any jurisdiction to deny the benefit of the Scheme to a declarant on the sole ground that department has taken for filing an Appeal against the Order in Original. The impugned order passed by respondent no.2 is wholly without jurisdiction and beyond its power conferred under the Scheme of 2019. The Designated Committee travelled beyond the purview of the Scheme and acted in a wholly illegally and arbitrary manner by denying the benefit of the Scheme to the petitioner. The crux of the case revolves around the category i.e. arrears or litigation under which the case of the Petitioner will fall. From bare perusal of the aforesaid provisions of Scheme, it would transpire that the nature of cases falling under Section 121(c) is categorized under arrears category . Section 123(a), 123(b) and 123(c) deals with cases falling under litigation category for determining t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2020 passed by Respondent No.2 (Annexure 11), wherein Declaration filed by the petitioner under Section 125 (2) of SABKA VISHWAS (LEGACY DISPUTE RESOLUTION) SCHEME, 2019, in Form SVLDRS 1, has been rejected, is wholly beyond jurisdiction and beyond the powers vested upon the Designated Committee in terms of Section 126 of SABKA VISHWAS (LEGACY DISPUTE RESOLUTION) SCHEME, 2019, (herein after referred to as Scheme of 2019 . (iii) For issuance of an appropriate writ/order/direction, including Writ of Mandamus, directing the Respondents to accept the Declaration filed by the petitioner under Section 125(2) of the Scheme of 2019 and to extend the benefit thereof to the petitioner by issuance of Discharge Certificate to the petitioner after accepting the amount of Rs. 33,69,111/ which the petitioner is liable to deposit under the Scheme of 2019. 3. Mr. Sumit Gadodia, learned counsel for the petitioner submits that in the instant case a Demand cum Show Cause Notice was issued to the petitioner for levy of service tax including cess amounting to Rs.2,52,92,695/ on 28 th October 2019 (Annexure 1). The order in original was passed on 14 th January 2020 (Annexure 2) by which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aning of expression Tax Dues as illustrated under Section 123 of the Scheme. It is submitted that Section 123 Sub section (relates to instances where the case of a declarant would fall in the category of Litigation . Sub section (b) thereof relates to situation where only a show cause notice has been issued whereas Sub section (c) thereof relates to cases where investigation is pending. It is further submitted that Section 124 relates to the amount of tax relief available to a declarant who falls under the Scheme. Relying upon Sub-section 124 (1)(c) it is submitted that since the case of the petitioner fell in the category of amount in arrears, he would have been entitled to relief of duty of 40% of the tax dues since the amount of duty was more than Rs. 60 Lakhs. Learned counsel for the petitioner further submits that Section 125 provides the conditions in which a person is not eligible to make a declaration. It is submitted that in terms of the provisions of the Scheme, since the show cause notice of the petitioner was issued on 20 th October 2019 i.e. after the cut off date of 30 th June 2019 as indicated in Section 125 of the Scheme and the order in original was also pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 01.07.2019 and tax dues having not been quantifies on or before 30.06.2019, shall not be eligible under litigation or enquiry/investigation/audit category but under arrears category, provided all statutory requirements pertaining to appeal and review have been fulfilled. Clause 2(viii) of the Circular No.1074/07/2019-CX dated 12.12.2019, only elaborated this provision, which was well provided in the Act. The said clause also clearly states that it was to reduce litigation, which was one of the objectives of the scheme. Accordingly, the said circular is within the scope of the SVLDRS, 2019. In addition, Section 133 of the Act provides that for proper administration of the scheme, the Central Board of Indirect Taxes and Customs may issue orders; instructions and directions. 10. That the petitioner is not entitled to any equitable relief/reliefs from this Hon ble Court the Writ Application is fit to be dismissed in limine. It is submitted that as per the statements made in the supplementary counter affidavit the declaration of the petitioner would fall in the category of Litigation , if any appeal had been preferred by 30 th June 2019 only, otherwise the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shwas (Legacy Dispute Resolution) Scheme, 2019 (hereinafter referred to as SVLDRS, 2019 ) against the said SCN as same was issued to the petitioner on 28.10.2019 by the Respondent. Section 123(b) of the Finance Act, 2019 states that: (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. Thereafter, vide Para 2(viii) of the Circular No.1074/07/2019-CX dated 12.12.2019, it was clarified that the show cause notices which were issued on or after 01.07.2019 are eligible in the category of Arrears only under SVLDRS, 2019 after due process of adjudication and review. Further, as per direction contained in Para 02(viii) of the Circular No.1074/07/2019-CX dated 12.12.2019 and request made by the petitioner vide their letter dated 10.01.2020, the aforesaid demand cum show cause notice was adjudicated by the competent authority vide Order in Original No.15/S. Tax/Pr. Commr/19 dated 14.01.2020 (hereinafter referred to as the said OIO), confirming the demand of Service Tax amounting to Rs.71,18,136/ along ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Advisory No.02/2020 dated 03.04.2020 was communicated vide F. No.IV(33)07/2019 System dated 03.04.2020 by the Directorate General of Systems of Data Management, New Delhi wherein it was instructed that the Designated Committee Members can issue SVLDRS Form 2 to the taxpayers on or before 01.05.2020. After 01.05.2020, the Designated Committee Members will not able to issue SVLDRS Form 2 in any case. Thus, as per the directions contained in the said Advisory, the Designated Committees have to take decision on disposal of Form SVLDRS 1 on or before 01.05.2020. Till 27.04.2020, the Review Order was not communicated to this office by the competent authority, hence, SVLDRS Form 2 was issued on 27.04.2020 to the petitioner by the designated committee to give an opportunity to be heard for the tax dues i.e. Rs. 2,52,92,695/ as demanded vide aforesaid SCN to make SVLDRS-1 (ARN LD1401200006093) alive under SVLDRS, 2019 till the finalization of the Review process of the aforesaid OIO. Vide letter F. No. 390/Difference Opinion/06/2020-JC dated 11.05.2020, the Member, CBIC, New Delhi ordered that grounds adopted for Review of the said OIO by the Chief Commissioner, Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r C. No. V(30)912/Om Prakash/SVLDRS/Ran/2019/2713 dated 15.05.2020. Further, it is pertinent to be mentioned that vide letter C. No. V(30)03/T R/Pr .Commr/Kashyap/RS/RAN/2020 21/3093 date 16.06.2020, an appeal has already been filed against the said OIO before the Hon'ble CESTAT, Kolkata. Therefore, the rejection of declaration filed vide ARN LD1401200006093 is legal and proper. 8 . Mr. Pati, further submits that during course of hearing this Court asked the respondents as to whether Circular dated 12.12.2019 falls within the scope of Scheme of 2019 and in particular the eligibility condition prescribed under Section 125 thereof. For brevity order dated 03.01.2022 reads as follows:- In the brief background facts of the respective writ petitions noted hereinabove, the issue which has cropped up during course of hearing is whether the circular dated 12th December, 2019 falls within the scope of the scheme of 2019 and in particular the eligibility condition prescribed under Section 125 there of. The legislature had consciously prescribed a cut-off date of 30 th June, 2019 which are referable to on a plain reading of Sections 123, 124 and 125 read with Section 121 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and beyond its power conferred under the Scheme of 2019. The Designated Committee travelled beyond the purview of the Scheme and acted in a wholly illegally and arbitrary manner by denying the benefit of the Scheme to the petitioner. It appears that the benefit of Scheme has been extended from 31 December, 2019 to 15th January, 2020, vide Notification dated 31 st December, 2019, issued by Central Government. Thus, a declarant was entitled to avail the Scheme up to 15 January 2020, and, admittedly, Petitioner filed its declaration in Form SVLDRS 1 before the expiry of the said period. 11. It further transpires that crux of the case revolves around the category i.e. arrears or litigation under which the case of the Petitioner will fall. From bare perusal of the aforesaid provisions of Scheme, it would transpire that the nature of cases falling under Section 121(c) is categorized under arrears category . Section 123(a), 123(b) and 123(c) deals with cases falling under litigation category for determining tax dues under the Scheme. The said provisions of Section 123 are not applicable to the case of the Petitioner, as admittedly, no Appeal was pending as on 30. 06.2019 and th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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