TMI Blog2023 (2) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... June, 2019 as per Section 124(1)(a) of the Scheme. Petitioner could not be called not eligible or excluded to make declaration under the said scheme in view of Section 125(1)(c) of the aforesaid scheme since no final hearing had been taken place on or before the 30th June, 2019, after setting aside of the order-in-original and remanding the matter back by the CESTAT to adjudicating authority concerned for de novo adjudication on the show cause cum demand notices in question which is an admitted factual position and even till date no final order has been passed on the said show cause cum demand notices in question. Petition is disposed of by setting aside the impugned orders dated 12th February, 2020 rejecting the applications of the petitioner filed under SVLDRS- 2019 and the respondents authority concerned are directed to grant appropriate relief to the petitioner under the aforesaid Scheme by reconsidering the aforesaid applications in the light of the observations made in this judgment, after giving opportunity of hearing to the petitioner or its authorised representative. - Hon ble Mr. Justice Md. Nizamuddin For the Petitioner :- Mr. Tushar Jarwal, Adv. Mr. Avra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicate the show cause notices in question and admittedly no final hearing took place on the said show cause notices and were not adjudicated afresh and were pending on the date of filing the applications under the aforesaid scheme, impugned order of rejection of the applications under the aforesaid scheme is legal and valid? (iv) Whether on the facts and in the circumstances of the case and in view of Section 124(1)(a) of the aforesaid Scheme can the tax dues relatable to show cause notices in question be called not pending on 30th June, 2019 or on the date of filing the application under the aforesaid scheme during the existence of the aforesaid scheme? (v) Whether on the facts and in the circumstances of the case, defence of the respondents in rejecting the application of the petitioner by relying on Section 125(1)(a) of the aforesaid scheme, is tenable in the eye of law? (vi) Whether on the facts and in the circumstances of the case stand of the respondents that no relief can be granted to the petitioner under the aforesaid Scheme since the same is not in existence now, is tenable in the eye of law though the applications under the aforesaid Scheme were filed befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osit, that it was in gross violation of the principles of natural justice as no hearing notice was given to the petitioner. It further challenged the order dated 30.03.2009 in the said writ petition on the ground that the restoration application of the petitioner for restoration of appeal was dismissed without considering the modification application dated 31.08.2007 filed by the petitioner. On making pre-deposit in compliance of the order of CESTAT, the appeal filed by the petitioner (Excise Appal No. 219 of 2007), was heard on merit on 18.05.2016 and the CESTAT allowed the appeal of the petitioner by setting aside the order-in-original dated 17.11.2006 and remanded the matter back to the adjudicating authority for de novo consideration on the notices cum demand in question. Consequently, the proceedings with respect to the said two show cause notices dated 10.03.1997 and 22.09.2004 got revived and since then it was pending before the adjudicating authority for fresh adjudication on the date of filing of applications under the aforesaid scheme and is pending even till date and in view of the aforesaid order of the CESTAT restoring the appeal and remanding the matter back for re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he factual and legal position that as per Section 123 (b) of the said scheme show cause cum demand notices in question received by the petitioner which was admittedly received before 30th June, 2019, was the amount of duty payable and the said tax due was pending as per Section 124(1)(a) of the aforesaid scheme and as per Section125(1)(c) of the said scheme no final hearing had taken place on the show cause notices in question after the order of remand on the appeal filed by the CESTAT after restoring the appeal and dismissal of the writ petition by the Writ Court which was filed against the limited issue of conditional interim order of stay on making pre-deposit imposed by the CESTAT and dismissal of the said writ petition for default has no impact on the pendency of adjudication of the show cause cum demand notices after the order of remand by the CESTAT. Petitioner in support of his contention relies on several decisions of the Hon ble Bombay High Court in the case of Jyoti Plastic Works Pvt Ltd. Vs- Union of India reported in 2020 (43) G.S.T.L 675 (Bom.) and judgment of the Hon ble Delhi High Court in the case of Mukesh Jain, Proprietor of M/s. Jainsons Vs- Union o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Leave to Appeal (C) No. 2070/2022. Before dealing with contentions of the parties, some provisions of the aforesaid Scheme being SVLDRS 2019, which are relevant, are quoted hereunder: 121. In this Scheme, unless the context otherwise requires,- (a)........................ .......................... (f) appellate forum means the Supreme Court or the High Court or the Customs, Excise and Service Tax Appellate Tribunal or the Commissioner (Appeals); .............................. ............................. ................................. 123. For the purposes of the Scheme, tax dues means (a)................................ (b) where a show cause notice under any of the indirect tax enactment has been received by the declarant on or before the 30th June, 2019, then, the amount of duty stated to be payable by the declarant in the said notice: Provided that if the said notice has been issued to the declarant and other persons making them jointly and severally liable for an amount, then, the amount indicated in the said notice as jointly and severally payable shall be taken to be the amount of duty payabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5th January, 2020 when the aforesaid scheme was valid by virtue of notification issued by the Central Government it can be easily said that the applications under the aforesaid Scheme were filed within time and before the expiry of the aforesaid scheme. (ii) The show cause cum demand notices in question issued by the adjudicating authority were received by the petitioner before the 30th June, 2019, as per Section 123(b) of the aforesaid scheme and the duty was due and payable by the petitioner and the tax dues were relatable to show cause cum demand notices which were pending adjudication on 30th June, 2019 as per Section 124(1)(a) of the aforesaid Scheme. (iii) Petitioner could not be called not eligible or excluded to make declaration under the said scheme in view of Section 125(1)(c) of the aforesaid scheme since no final hearing had been taken place on or before the 30th June, 2019, after setting aside of the order-in-original and remanding the matter back by the CESTAT to adjudicating authority concerned for de novo adjudication on the show cause cum demand notices in question which is an admitted factual position and even till date no final order has been passed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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