9911796707
TMI Blog2023 (4) TMI 964X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The Petitioner has filed the present petition impugning letters dated 29.07.2019 and 30.07.2019 (hereafter 'the impugned letters') issued by respondent no. 3 (the Assistant Commissioner of Central GST Audit-II, Delhi) calling upon the petitioner to make service tax payments along with applicable interest and penalty for the period of Financial Years 2014-15 to 2017-18 (April-June). The petitioner also impugns a Demand Cum Show Cause Notice No. 47/2019-20 dated 18.10.2019 (hereafter 'the impugned SCN') proposing imposition of the aforesaid levies. 3. By virtue of Section 173 of the CGST Act, Chapter-V of the Finance Act, 1994 (Act 32 of 1994) (hereafter 'the Finance Act'), was omitted. The petitioner claims that as on 01.07.2017 - the date on which the CGST Act came into force - there were no proceedings pending under Chapter-V of the Finance Act, in respect of the petitioner. The petitioner claims that no investigation, inquiry, assessment proceedings or any other proceedings under Chapter-V of the Finance Act, were pending against the petitioner as on 01.07.2017. It is the petitioner's case that no fresh proceedings for assessment or recovery of service tax under Chapter-V o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt proceedings, adjudication and any other legal proceedings or recovery of arrears or remedy in respect of any such duty, tax, surcharge, penalty, fine, interest, right, privilege, obligation, liability, forfeiture or punishment, as aforesaid, and any such investigation, inquiry, verification (including scrutiny and audit), assessment proceedings, adjudication and other legal proceedings or recovery of arrears or remedy may be instituted, continued or enforced, and any such tax, surcharge, penalty, fine, interest, forfeiture or punishment may be levied or imposed as if these Acts had not been so amended or repealed; or (f) affect any proceedings including that relating to an appeal, review or reference, instituted before on, or after the appointed day under the said amended Act or repealed Acts and such proceedings shall be continued under the said amended Act or repealed Acts as if this Act had not come into force and the said Acts had not been amended or repealed. (3) The mention of the particular matters referred to in sub-sections (1) and (2) shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 (10 of 1897) with re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , obligation, liability, forfeiture or punishment, as aforesaid" contained in Clause (e), as also the words "and any such investigation, inquiry, verification ......" used in the same clause. We cannot agree with this submission of learned Senior Counsel for the Petitioner. Clause (e) expressly empowers the Competent Authorities to initiate and institute even fresh proceedings under the omitted chapter V of the Finance Act, 1994 and the rules framed thereunder, despite the said omission by Section 173 of CGST Act. This is clear from the use of the expression "may be instituted, continued or enforced "in Clause (e) of Section 174 (2) of the Act. Clause (d) of Section 174 (2) saves "any duty, tax, surcharge........ as are due or may become due ....." There is nothing to suggest that the "duty, tax, surcharge" etc. should relate to proceedings initiated under, inter alia, Chapter V of the Finance Act, 1994 before the coming into force of the CGST Act, and not to proceedings initiated under the enactments after the coming into force of the CGST Act. If this submission of the Petitioner were to be accepted, it would mean that all evasions of, inter alia, service tax and all infractions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prior to 01.01.1973, the date on which the 1973 Act came into force. However, 8494 cases for determining the ceiling areas under Chapter-III-B of the 1955 Act, which were initiated and were sought to be continued under Chapter-III of the repealed 1955 Act after 01.01.1973. 10.3 In the aforesaid context, one of the contentions advanced by the appellants, was that even if Section 6 of the Rajasthan General Clauses Act, 1955 is attracted, the cases did not involve any rights, 'accrued' or obligations 'incurred' so as to attract the provisions of the 1955 Act. In the said context, the Court had observed as under: "30. For the purposes of these clauses the "right" must be "accrued" and not merely an inchoate one. The distinction between what is and what is not a right preserved by Section 6 of the General Clauses Act, it is said, is often one of great fineness. What is unaffected by the repeal is a right 'acquired' or 'accrued' under the repealed statute and not "a mere hope or expectation" of acquiring a right or liberty to apply for a right." 10.4 However, having observed as above, the Supreme Court held that the right of the State to the excess land was not an inchoate right und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 6, General Clauses Act is often one of great fineness. What is unaffected by the repeal of a statute is a right acquired or accrued under it and not a mere "hope or expectation of", or liberty to apply for, acquiring a right. A distinction is drawn between a legal proceeding for enforcing a right acquired or accrued and a legal proceeding for acquisition of a right. The former is saved whereas the latter is not......" 15. The aforesaid passage makes it amply clear that any legal proceeding for enforcement of a right would be unaffected by the repeal of the statute. However, any hope or expectation of acquiring a right under a repealed provision may be affected. In the present case, there is no dispute that the impugned SCN was issued in exercise of the duty to ensure compliance with the provisions of Chapter-V of the Finance Act. As stated above, the petitioner has an obligation to correctly pay the service tax under Chapter-V of the Finance Act and the proceedings initiated by the impugned SCN are merely to ensure discharge of the said obligation. 16. We find no merit in the contention that the issues sought to be raised by the petitioner are not covered by the earlier d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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