TMI Blog2022 (10) TMI 1199X X X X Extracts X X X X X X X X Extracts X X X X ..... 659 to which the petitioner had submitted a reply on June 6, 2019 admitting, accepting, agreeing and quantifying the service tax payable by him as Rs.1,37,05,125 much prior to June 30, 2019, which was the cut- off date under the SVLDR Scheme and clarified by the circulars dated August 27, 2019 and December 12, 2019 issued by the respondent. The respondents committed an error in not only passing the impugned order at annexure A rejecting the claim of the petitioner for benefit under the SVLDR Scheme, but also erred in passing the impugned order at annexure H dated April 26, 2021 and consequently, the impugned orders deserve to be set aside and the matter be remitted back to the respondent for reconsideration afresh in accordance with law. Petition allowed by way of remand. - MR. S. R. KRISHNA KUMAR, J. Ravi Raghavan and Rohan Karia for the petitioner. Smt. Vanita K. R. for the respondents. ORDER In this petition, the petitioner has sought for the following reliefs : (a) Issue a writ of certiorari or any other writ, order or direction under article 226 of the Constitution of India calling for the records pertaining to the petitioner's case and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be entitled to the benefit of waiver of the said amount under the Scheme. 5. It is the grievance of the petitioner, despite the aforesaid facts and circumstances, the concerned committee under the SVLDR Scheme not only rejected the application of the petitioner, but also the respondents proceeded to pass the impugned order confirming the demand of duty with interest and penalty as demanded in the show-cause notice by coming to the conclusion that the petitioner was not entitled to benefit under the said SVLDR Scheme, thereby rejecting the claim of the petitioner, who is before this court by way of the present petition. In support of his contentions, learned counsel for the petitioner relies upon the circulars dated August 27, 2019 and December 12, 2019 issued by the respondents as well as the following judgments of this court : (i) Bioneeds India (P) Limited v. Commissioner of Central Tax [2023] 110 GSTR 422 (Karn) W. P. No. 15497 of 2021 dated August 26, 2022. (ii) Nikitha Build Tech (P) Limited v. Union of India [2023] 110 GSTR 426 (Karn) W. P. No. 21844 of 2021, dated October 20, 2022. 6. Per contra, learned counsel for the respondents submits that ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per the Scheme. 4. It is the grievance of the petitioner that despite the petitioner submitting form SVLDRS-1 on December 28, 2019, the respondents issued a show-cause notice dated January 7, 2020 followed by a notice in form SVLDRS-2 dated January 23, 2020 to which, the petitioner submitted a reply in Form SVLDRS-2A on February 4, 2020 and also submitted a letter dated February 5, 2020 to the respondents. It is further contended that on February 28, 2020, the respondents issued a show-cause notice which was replied by the petitioner on March 20, 2020. It is contended that despite the aforesaid facts and circumstances and the petitioner admitting and quantifying the service tax payable by him prior to the cut-off date, i. e., June 30, 2019 and making a request for availing the benefit under the SVLDR Scheme prior to the cut-off date, the respondents have proceeded to pass the impugned order at annexure N dated May 6, 2020 rejecting the claim of the petitioner for the benefit under the SVLDR Scheme on the ground that the amount payable by the petitioner had not stood quantified as on June 30, 2019 and consequently, in view of the Board circular issued by the respondents as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... une 30, 2019, the petitioner had admitted and quantified the service tax payable by him as Rs. 50,50,277. 9. Under identical circumstances, in Bioneeds India's case [2023] 110 GSTR 422 (Karn), this court held as under (pages 423-425 in 110 GSTR) : 'In this petition, petitioner has sought for the following reliefs : (a) Quash the impugned order passed by the Designated Committee by way of letter C. No. IV/16/854/2019 Adjn BNW/6593/2020 dated May 8, 2020 vide annexure A. (b) Issue writ of mandamus or direction or any other appropriate writ directing the respondents to extend the benefit under the SVL DRS, 2019 based on the service tax liability quantified, admitted and already paid by the petitioner. (c) Grant such other writ, order or direction as deemed fit in the facts and circumstances of the case in the interest of justice and equity.' 2. Heard learned senior counsel for the petitioner and learned counsel for the respondents-Revenue and perused the material on record. 3. In addition to reiterating the various contentions urged in the petition and referring to the material on record, learned senior counsel for the petitioner submits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, audit/audit report, etc., and any admission in this regard has to be treated and construed as 'quantification' for the purpose of section 123(c) of the SVLDR Scheme. In this regard, a perusal of the answer given by the petitioner to question No. 7 in the statement recorded by the respondents (annexure E, dated January 12, 2018) will clearly indicate that there is an admission on the part of the petitioner with regard to total sales service tax liability and this admission is what is sought to be brought under and availed benefit of by the petitioner in his application under the SVLDR Scheme. Under these circumstances, I am of the considered opinion that in view of clause 10(g) of the aforesaid circular dated August 27, 2019 coupled with section 123(c) of the SVLDR Scheme, the admission made by the petitioner during the course of investigation on January 12, 2018 clearly amounts to quantification prior to June 30, 2019 for the purpose of availing the benefit of the SVLDR Scheme and consequently, merely because the investigation had not been completed before June 30, 2019, the said circumstance cannot be made the basis to come to the conclusion that the petitioner was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the respondents on June 27, 2019, July 22, 2019 and July 29, 2019 in three instalments. 12. Under these circumstances, since the petitioner has already made payment of the amount in respect of which, he had claimed the benefit under the SVLDR Scheme much prior to submitting form SVLDRS-1, I am of the view that the petitioner would be entitled to avail the benefit under the SVLDR Scheme and rejection of the same by the respondents by issuing the impugned communication is clearly arbitrary, illegal and contrary to law as well as the provisions of the said Scheme and the same deserves to be quashed. 13. In so far as the contention of the respondents that while the admission and quantification of the petitioner is only in respect of Rs. 50,50,277, there is a discrepancy with regard to the amount quantified under the SVLDR Scheme which is Rs. 53,88,248, which dis entitles him from claiming the benefit under the said Scheme is concerned, it is significant to note that as against the admitted fact quantifying liability of Rs. 50,50,277 and in terms of the said Scheme, the petitioner would be entitled to waiver of 50 per cent. of the said sum of Rs. 53,88,248, which would come ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attract bar of res judicata, there should be determination of issues finally by the court or Tribunal or the authority and in the absence of determination of any issue or question that arose between the parties, in W. P. No. 8051 of 2021 the bar of res judicata would not be attracted. Further in the light of the undisputed fact that there was no determination of any issue or question in the earlier round of litigation in W. P. No. 8051 of 2021, which was restricted and limited only to the order dated May 8, 2020 and not in respect of the order-in-original dated March 5, 2021, question of present petition being barred by res judicata is totally mis conceived and untenable and the same is liable to be rejected. 18. In the result, I pass the following : ORDER (i) Petition is allowed. (ii) The impugned order bearing C. No. IV/16/833/2019 Adjn BNW, dated May 6, 2020 at annexure A passed by respondent No. 4 and order-in-original No. 30/2020-Adj., dated March 5, 2021 at annexure R passed by respondent No. 6 are hereby quashed. (iii) Matter is remitted back to the respondents for reconsideration of the claim of the petitioner bearing in mind the circulars date ..... X X X X Extracts X X X X X X X X Extracts X X X X
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