9911796707
TMI Blog2023 (2) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... ding" and that the two show cause notices in question had already been adjudicated by one order-in-original and upheld by the CESTAT and High Court, is erroneous in law and perverse? (ii) Whether on the facts and in the circumstances of the case applications filed by the petitioners on the date when the aforesaid scheme was existing, can show cause cum demand notices in question be called 'finally heard' for denying the benefit under the said Scheme when the order-in-original on the show cause notices in question were set aside by the CESTAT and the matter was remanded back to the adjudicating authority for re-adjudication of the same and in view of the admitted fact that on or before the date of filing the application under the aforesaid scheme no final hearing was taken place and no order was passed by the adjudicating authority after the order of remand by CESTAT on the show cause cum demand notices? (iii) Whether on the facts and in the circumstances of the case dismissal of the earlier writ petition by this Court confining to the only issue of legality of interim order by the CESTAT passed on Appeal filed by the petitioner asking the petitioner to make pre-deposit of 25% o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stay petition before the CESTAT. On 09.07.2007 the stay application filed by the petitioner came up for hearing before the CESTAT wherein an order was passed (hereinafter referred to as "Stay Order") directing the petitioner to make a pre-deposit of 25% of the disputed excise duty as a condition precedent for hearing the appeal in question on merits and the date of compliance of the said order was fixed on 17.09.2007. Thereafter petitioner filed a miscellaneous application on 31.08.2007 before the CESTAT seeking modification of the aforesaid order dated 09.07.2007 which had directed payment of pre-deposit of 25%. In the said modification application, the petitioner prayed that it may be allowed to make the pre-deposit by way of a bank guarantee and not by way of cash. Due to non compliance of the condition of stay, appeal of the petitioner was dismissed by the CESTAT on 19.11.2007. On 30.03.2009 the restoration application dated 05.12.2007 for restoring the appeal was dismissed by the CESTAT. On 21.10.2009 the petitioner filed a writ petition being W.P. No. 1064 of 2009 against the aforesaid order dated 19.11.2007 dismissing the appeal for not making pre-deposit of 25% of the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-NT, extended the last date of filing declaration under the scheme from 31.12.2019 to 15.01.2020. On 15.01.2020 as the show cause notice dated 10.03.1997 and 22.09.2004 were pending for adjudication as on 30.06.2019 before the adjudicating authority after the order of remand by the CESTAT, the petitioner filed two declarations under SVLDRS-2019 for claiming of relief and settlement of its aforesaid pending tax/duty dispute. The respondents concerned on 12.02.2020 rejected both the aforesaid applications/declarations of the petitioner. The common ground taken by the authority concerned for rejecting both the declarations was that the applications were filed in the wrong category as 'SCN involving duty pending' whereas two show cause notices had been adjudicated by one order-in-original and upheld by the CESTAT and this Writ Court. Further, according to the authority concerned, with respect to the declaration filed for SCN dated 22.09.2004, there is an additional ground of rejection that there was no proof of payment of deposit of Rs.86,00,000/-. Petitioner submitted that the aforesaid impugned orders rejecting the aforesaid applications of the petitioner are on the aforesaid two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Court in the case of M/s. M.P. Khaitan -Vs- The designated Committee & Ors. reported in 2022 (3) TMI 322 - Calcutta High Court on the proposition of law that stand of the revenue that if the scheme has already expired no relief can be granted to the petitioner is not tenable in the eye of law if the application was filed before the date of expiry of the Scheme. Learned Advocate appearing for the respondents opposes the writ petition by defending the impugned order of rejection of the applications of the petitioner under the said scheme by contending as hereunder: (i) That appeal filed by the petitioner had already been finally heard before the date of coming into effect the aforesaid scheme and as such petitioner is not eligible to avail the benefit of the said scheme in view of Section 125(1)(a) of the said scheme. (ii) That the said scheme has already been expired and is not available now, no relief can be granted to the petitioner. (iii) That in view of dismissal of the writ petition filed by the petitioner before the commencement of the said scheme, petitioner is not entitled to avail the benefit of the said scheme. (iv) That there was no proof of deposit of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ....................... ................................... 127. (1)........................ ............................. ................................. (7) Where the declarant has filed a writ petition or appeal or reference before any High Court or the Supreme Court against any order in respect of the tax dues, the declarant shall file an application before such High Court or the Supreme Court for withdrawing such writ petition, appeal or reference and after withdrawal of such writ petition, appeal or reference with the leave of the Court, he shall furnish proof of such withdrawal to the designated committee, in such manner as may be prescribed, along with the proof of payment referred to in sub-section (5). Considering the facts and circumstances of the case as appears from record and taking into consideration the relevant provisions of the aforesaid Scheme under SVLDRS 2019 particularly on reading together the provisions under Section 121(f), 123(b), 124(1), 125(1)(a), 125(1)(c) and 125(7), I am of the considered opinion that the impugned orders dated 12th February, 2020 rejecting the petitioner's applications under the SVLDRS 2019, are arbitrary, invalid, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otices in question and more particularly when such order of the CESTAT authority restoring the appeal and remanding the matter for re-adjudication of show cause notices was not further challenged by the revenue authority before any forum and when no final hearing has been taken place before the adjudicating authority concerned after the order of remand by the CESTAT either on or before 30th June, 2019 or even till date, in view of such admitted factual position it can be easily said that the adjudication on the show cause notices in question was pending on the date of filing of the applications under the said scheme. (v) Question of withdrawal of proceeding relating to disputed 'Duty' pending before the High Court on or before the date of filing the applications as per Section 127 (7) under the aforesaid Scheme does not arise in the facts and circumstances of the case since on the date of filing the applications in question under the aforesaid Scheme no related proceeding was pending before the High Court. (vi) Unreported judgment of the Hon'ble Supreme Court in the case of M/s. Yashi Constructions -Vs- Union of India relied upon by the respondents has no application in the f ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
