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TMI Blog2023 (9) TMI 1287X X X X Extracts X X X X X X X X Extracts X X X X ..... order or direction ordering and directing the Respondent to accept the application (FORM SVLDRS 1) filed by the petitioner and issue discharge certificate (FORM SVLDRS 4) to the petitioner because, the petitioner is eligible for the relief / benefit available under SVS, 2019 and has rightly opted for it and willing to pay the designated / specified amount required to be paid; (e) without prejudice to the above, this Hon'ble Court be pleased to issue a writ of mandamus or any other appropriate writ, order or direction ordering and directing the Respondent to adhere to the provisions of SVS, 2019 and afford an opportunity to the petitioner to put forth their case/submissions and thereafter, pass a reasoned order;" Narrative of Events : 3. The Petitioner is engaged in the business of manufacture and sale of gold/silver articles and jewellery. The Petitioner is registered with the Central Excise Department and the goods of the Petitioner are classified under heading 7113 of the Central Excise Tariff Act, 1985. 4. On 10th July, 2018, Respondent No. 4 intimated the Petitioner about internal audit being taken up of the account/records of the Petitioner for the period of April 2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be bullion only and as the process does not amount to manufacture there cannot be any levy of excise duty. Having said so, the Petitioner stated that to buy peace and minimize litigation, the Petitioner would accept liability of excise duty of Rs. 1.94 crore as per the show cause notice and further stated that they wish to avail the benefit of Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 (hereinafter referred as 'SVLDR Scheme') to close the matter. 9. On 15th January, 2020, the Petitioner made an application under SVLDR Scheme in Form SVLDRS-1. In the said application, the basic excise duty was mentioned as Rs. 1,94,22,809/- and it was stated that the said quantification is as per communication dated 27th May, 2019. 10. On 15th January, 2020, the Respondents rejected the application made by the Petitioner in Form SVLDRS-1 on the ground that the Petitioner is ineligible since the "amount of duty was not quantified on/or before 30th June, 2019". It is on this backdrop that the present petition is filed challenging the rejection dated 15th January, 2020. 11. Heard learned counsel for the Petitioner and learned counsel for the Respondents and with their assistance have p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the indirect tax enactment, on account of- (i) no appeal having been filed by the declarant against on order or an order in appeal before expiry of the period of time for filing appeal; or (ii) an order in appeal relating to the declarant attaining finality; or (iii) the declarant having filed a return under the indirect tax enactment on or before the 30th day of June, 2019, wherein he has admitted a tax liability but not paid it; (g) "audit" means any scrutiny, verification and checks carried out under the indirect tax enactment, other than an enquiry or investigation, and will commence when a written intimation from the central excise officer regarding conducting of audit is received; (r) "quantified", with its cognate expression, means a written communication of the amount of duty payable under the indirect tax enactment. Section 123 For the purposes of the scheme, "tax dues" means- (a) where ....... (b) where a show cause notice under any of the indirect tax enactment has been received by the declarant on or before the 30th day of June, 2019, then, the amount of duty stated to be payable by the declarant in the said notice: Provided that if the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he amount declared by the declarant, then, the designated committee shall issue in electronic form, a statement, indicating the amount payable by the declarant, within a period of sixty days from the date of receipt of the said declaration. (2) Where the amount estimated to be payable by the declarant, as estimated by the designated committee, exceeds the amount declared by the declarant, then, the designated committee shall issue in electronic form, an estimate of the amount payable by the declarant within thirty days of the date of receipt of the declaration. (3) After the issue of the estimate under sub-section (2), the designated committee shall give an opportunity of being heard to the declarant, if he so desires, before issuing the statement indicating the amount payable by the declarant: Provided that on sufficient cause being shown by the declarant, only one adjournment may be granted by the designated committee. (4) After hearing the declarant, a statement in electronic form indicating the amount payable by the declarant, shall be issued within a period of sixty days from the date of receipt of the declaration. (5)...... (6)...... (7)...... (8)..... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3rd October, 2019 and 24th October, 2019 are addressed much after the cutoff date of 30th June, 2019. The quantification of duty happened only on the issuance of the show cause notice dated 14th January, 2020 which also falls after the cut-off date of 30th June, 2019. The Petitioner in its reply dated 14th January, 2020 after contending how there is no liability to the show cause notice has admitted the excise duty liability of Rs. 1.94 crore as per the show cause notice and this is evident from the letter dated 14th January, 2020, extract of which is reproduced reads as under : "Without accepting that "Vedhani" can be treated as jewellery, we being tax compliant assessee would prefer to minimize litigation and to buy the peace, we wish to file an application with Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 (SVLDR Scheme) to close the matter. For the said purpose we accept the liability of Excise Duty of Rs. 1.94 Crs as per the above referred show cause notice. We waive our right to be heard in person for the above matter and we request you good-self to kindly adjudicate the matter at the earliest." 19. The Petitioner was thus disqualified as per clause (e) of Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on-going investigation pending against him, which itself is a disqualification for the Appellant to avail the benefit of scheme. The Appellant, in the letter dated 13th June, 2019 did not claim the benefits of the scheme but only requested the Respondents to quantify the tax liability payable by him......... 13. Thus, the letter dated 13.06.2019 would clearly indicate that the appellant furnished certain documents only for quantification of the service tax liability and there is no whisper that he intended to avail the benefits of the scheme. Secondly, the letter also indicates that as on 13.06.2019, the service tax liability of the appellant has not been quantified, which is one of the pre-conditions to avail the benefits of the scheme. Therefore, the rejection of the application of the appellant by the first respondent herein is proper." 22. It is also important to note in the facts of the present case, the FAQs issued by the Respondents and the relevant question reads thus: "Q3. If an enquiry or investigation or audit has started but the tax dues have not been quantified whether the person is eligible to opt for the Scheme ? Ans. No. If audit, enquiry or investigatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would have been served by giving any opportunity of hearing nor does the scheme provide for any hearing under Section 125 of the SVLDR Scheme. The letter dated 27th May, 2019 on which the case of the Petitioner is based also does not specify any quantification of duty and same is apparent on the face of the said letter. Therefore, the plea of the Petitioner on the ground of hearing not been given would not take the case of the Petitioner any further . 27. We may now deal with the decision of the Bombay High Court in the case of Thought Blurb V/s. Union of India (2021) 125 taxmann.com 316 on the issue of opportunity of being heard. In the said case inspite of there being quantification of demand, the declaration under SVLDR Scheme was rejected without giving an opportunity of hearing. It was on these facts that the High Court observed that summary rejection of an application without affording any opportunity of hearing would be in violation of the principles of natural justice. The facts of the Petitioner before us are different. There is no quantification at all before the cut-off date and therefore even if an opportunity of hearing was given to the Petitioner, it would not have m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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