TMI Blog2023 (8) TMI 1145X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that, Commissioner should ensure that the said time limit of giving the notice within 30 days has to be followed scrupulously. It is added that the very nomenclature of the scheme is to promote voluntary encouragement by the assessee to make the declaration of the tax dues. Since the very purpose of introducing the scheme is to motivate the registered assessee who had stopped filing the returns to file returns and pay the taxes. The underlying object is to reduce unnecessary litigation, which is evident from the clarifications made in the Circulars. The VCES Scheme as further clarified in the Circulars needs to be implemented so as to give full play which would not only benefit the assessee but also the revenue. The revenue should accept the declaration filed by the appellant - Appeal allowed. - MS. BINU TAMTA, MEMBER (JUDICIAL) AND MR. P. V. SUBBA RAO, MEMBER (TECHNICAL) Sh. A. K. Batra, Advocate for the appellant Sh. Rohit Issar, Authorised Representative for the respondent ORDER The present appeal has been filed against the Order-in-appeal No. 87/ST/DLH/2017 dated 12.12.2017 passed by the Commissioner (Appeals-I) whereby the rejection of the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in question is time barred, having been received by the appellant beyond the specified period of thirty days? 7. Learned Counsel for the appellant has taken us through various Circulars which have been issued from time to time clarifying the issues that has arisen in the course of implementing the VCES Scheme and as also referred to some of the decisions of the Tribunal and also of the Bombay High Court. The main contention of the appellant was that the letter dated 18.02.2013 whereby he has been asked to supply the documents/ information is only of general nature and does not refer to any specific subject with which the enquiry can be said to have been initiated. On the other aspect of the show cause notice being time barred, he submitted that the show cause notice was dated 24.01.2014 but the same was received by him as per the postal record on 03.02.2014, which is beyond the period of thirty days. 8. Learned Authorised Representative for the Revenue has relied on the findings of the impugned order as well as the Order-in-original passed by the Adjudicating Authority and according to him when the appellant was asked to supply the documents / data/ information, it was clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of documents and evidences by the Central Excise Officer if any person liable to pay service tax fails to furnish the return or having made a return fails to assess the tax in accordance with the provision of the Chapter or rules made thereunder. (ii) Rule 5A of the Service Tax Rules, 1994 prescribes for requisition of specified documents by an officer authorised by the Commissioner for the purposes specified therein. The provision of section 106(2)(a)(iii) shall be attracted only in such cases where accounts, documents or other evidences are requisitioned by the authorised officer from the declarant under the authority of any of the above stated statutory provisions and the inquiry so initiated against the declarant is pending as on the 1 st day of March, 2013. No other communication from the department would attract the provisions of section 106(2)(a)(iii) and thus would not lead to rejection of the declaration . 9.1 Subsequently, further clarifications were sought and Circular No. 170/5/2013-ST dated 08.08.2013 was issued. It is pertinent to note that in the said circular at Sl. No. 1, clarification was sought with reference to the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority. 9.2 Thereafter, Circular No. 174/9/2013-ST dated 25.11.2013 dealt with certain other queries and issues and clarified the same. The issues concerning the present controversy are quoted below:- Sl. No. Issued raised Clarification 2. An apprehension was raised that declarations are being considered for rejection under section 106(2) of the Finance Act, 2013, even though the tax dues pertain to an issue or a period which is different from the issue of the period for which inquiry/ investigation or audit was pending as on 1.3.2013. Section 106(2) prescribed four conditions that would lead to rejection of declaration, namely, (a) An inquiry or investigation in respect of a service tax not levied or not paid or short-levied or short-paid has been initiated by way of,- (i) Search of premises under section 82 of the Finance Act, 1994; or (ii) Issuance of summons under section 14 of the Central Excise Act, 1944; or (iii) Requiring production of accounts, documents or other evidence under the Finance Act, 1994 or the rules made there unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue. The said letter reads as:- Subject: Service Tax Enquiry submission of data/ documents- reg. It is to inform you that an enquiry has been initiated against you by this office regarding proper payment of service tax. In this regard, you are requested to supply the following data/ documents/ information (self attested) to this office 01.03.2013 on 1130 hrs:- 1. Copy of Service Tax Registration Certificate (ST-2); 2. Copies of Service Tax Returns (ST-3) for the period April, 2011 to June, 2012; 3. Copy of Annual Reports alongwith Profit Loss Accounts, all schedules and Notes to Accounts for FY 2011-12; 4. List of ongoing projects as on 01.07.2010; 5. Month-wise and project-wise details of demand raised / advances received from prospective buyers of property for the period 01.04.2010 to 31.12.2012 and service tax paid through cash and/ or CENVAT thereon, if any; Yours sincerely Sd/- (R. P. Mittal) Superintendent (AE) Service Tax, Delhi 011-40785827 Note: This letter may be treated as issued under Section 14 of the Central Excise Act, 1944 within the meaning of Section 193 and Section 228 of the Indian Penal Code as made applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts received from each of the contractors involving the contract value of more than Rs.50,00,000/- and a copy of ST-3 Returns filed with the Service Tax Department for those years. On a reading of the communication, dated 19.02.2013, served by the DGCEI on the respondent assessee, the Tribunal rightly held that by the said communication, the assessee was called by the DGCEI to produce the documents like the balance-sheets, profit and loss account and all the other documents that are mentioned in the said communication, in the enquiry of roving nature without giving any details of any particular transaction or particular matter with regard to which the enquiry was sought to be made. Only by quoting the provisions of Section 14 of the Central Excise Act in the communication dated 19.2.2013, the DGCEI asked the petitioner to produce almost all the documents pertaining to the financial years 2008-09 to 2011-12 without mentioning any reasons for seeking the said documents or without seeking any particular documents pertaining to any particular query . By relying on the Board Circular, dated 25.11.2013 that is clarificatory in nature, the Tribunal rightly held that the adjudicating aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be treated that notice as stipulated in Section 126 has been given. In K. Narasimhiah [K. Narasimhiah v. H.C. Singri Gowda, (1964) 7 SCR 618 : AIR 1966 SC 330] , this Court has held that mere dispatch of notice would not amount to giving of notice. Giving would be complete only when it has been offered to the person/addressee concerned, even when it is not accepted by him on tendering. Likewise, in Banarsi Debi case [Banarsi Debi v. ITO, (1964) 7 SCR 539 : AIR 1964 SC 1742] , referring to Section 27 of the General Clauses Act, 1897 which deals with the expressions serve or give or sent , this Court held that all these expressions, namely, serve , give and sent are interchangeable terms and, therefore, notice would be treated to have been issued only when the entire process of sending the notice i.e. from dispatch till the service thereof, is complete. 13. In view of the above principle laid-down by the Apex Court, we are of the considered view that the show cause notice in the present case is time barred and cannot be acted upon. Further, the Circular dated 25.11.2013 in unequivocal words has stated that, Commissioner should ensure that the said time limit of gi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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