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TMI Blog2024 (11) TMI 1349X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Accordingly, the present application is disposed of. SERTA 6/2024 CM APPL. 12283/2024 CM APPL. 12284/2024 CM APPL. 47048/2024 3. The Revenue has filed the present appeal under Section 35G of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994 (hereafter the 1994 Act) impugning order No. 50304/2023 dated 13.03.2023 in Service Tax Appeal No.51340/2018 passed by the learned Customs, Excise and Service Tax Appellate Tribunal (hereafter the CESTAT). 4. The controversy in the present appeal relates to the respondent's (hereafter the taxpayer) application under the Voluntary Compliance Encouragement Scheme (hereafter VCES), which was introduced by virtue of Chapter VI of the Finance Act, 2013 (hereafter the 2013 Act) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. The second paragraph of the said letter sets out the grounds on which the rejection was proposed. The same is reproduced below: "In this regard, it is informed that audit of your company has been done by this Commissionerate and an IAR No.174/10-11 dated 22.09.2010 has been to you. Further a Demand Cum Show Cause Notice No.132/ST/GGN/2012-13 dated 19.10.2012 has been also issued for the period provided in the VCES scheme and the same is pending as on 01.03.2013". 9. Subsequently, the taxpayer's application was partly rejected by an order-in-original dated 24.05.2016, on the aforesaid grounds, namely: (a) that the internal audit report had determined the liability; and (b) that the show cause notice had been issued covering this period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 or section 73 or section 73A of the Chapter has been issued or made before the 1 day of March, 2013: Provided that any person who has furnished return under section 70 of the Chapter and disclosed his true liability, but has not paid the disclosed amount of service tax or any part thereof, shall not be eligible to make declaration for the period covered by the said return: Provided further that where a notice or an order of determination has been issued to a person in respect of any period on any issue, no declaration shall be made of his tax dues on the same issue for any subsequent period. (2) Where a declaration has been made by a person against whom, (a) an inquiry or investigation in respect of a service tax not levied or not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Finance act 2013. Section 106 (1) reads as follows: 106. (1) any person may declare his tax dues in respect of which no notice or in order of determination under section 72 or section 73 or section 73A of the chapter has been issued or made before the 1st day of March, 2013:............ 10.1 An order of determination under sections 72, 73 or 73A would be an order in relation to a show cause notice issued under such indirect tax enactment. An audit report cannot be regarded as an order of determination. If that be the case, it would render clause (b) of section 106(2) infructuous. In this regard, we note that the High Court of Bombay, in the case Pace Setter Business Solutions Pvt Ltd Vs Union of India has held the following: "17. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it report also contains the determination of the service tax liability and, therefore, the taxpayer's liability had been determined prior to the taxpayer's filing his declaration under Section 107 of the 2013 Act. He submitted that, therefore, the taxpayer was ineligible to avail the benefit of the VCES since its liability stood determined in terms of the audit report. 17. We do not find any merit in the said contention. The question is not whether any exercise for determining the service tax dues had been conducted or whether an ascertainable quantum of outstanding service tax had been reported. The opening sentence of Section 106 of the 2013 Act is unambiguous, and expressly provides that any person may make a declaration with respect to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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