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TMI Blog2006 (1) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... ble value for the period from 1-10-1979 to 30-6-1983. The petitioners were issued with 20 show-cause notices and in the amount of Rs. 98,37,567.51 was raised. The Assistant Commissioner of Central Excise took up the adjudication of the show-cause notices and passed an order-in-original No. 24/96 on 31-5-1996 whereby he disallowed the abatement towards post manufacturing expenses and trade discount (Rebate on cash sales). Aggrieved by the said order, the petitioners preferred appeal before the Commissioner of Central Excise (Appeals), Mumbai. The Commissioner of Central Excise (Appeals), Mumbai rejected the appeal on 14-1-1999. The petitioners claim to have received the copy of the order-in-appeal dated 14-1-1999 on 23-2-1999. 4. Kar Vivad Samadhan Scheme, 1998 (the scheme) came into effect on 1st September, 1998 by the Finance (No. 2) Act, 1998. Under the scheme, the tax payer was required to file declaration for settling the tax arrears between 1st September, 1998 and 31st January, 1999. It is the petitioners case that in order to put an end to the litigation and settle the tax arrears of Rs. 31,62,625.34, they opted to avail the aforesaid scheme and made an application under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner of Central Excise, Mumbai-II (designated authority) justified in rejecting the declaration filed by the petitioners on 30-1-1999 under the Kar Vivad Samadhan Scheme, 1998. 7. Section 95 of the Finance Act, 1998 provides that the provisions of the scheme shall not apply in certain cases. Section 95 reads thus - "95. Scheme not to apply in certain cases. - The provisions of this Scheme shall not apply- (i) in respect of tax arrear under any direct tax enactment,- (a) in a case where prosecution for concealment has been instituted on or before the date of filing of the declaration under section 88 under any direct tax enactment in respect of any assessment year, to any tax arrear in respect of such assessment year under such direct tax enactment or in respect of a person who has been convicted for concealment on or before the date of filing the declaration; (b) in a case where an order has been passed by the Settlement Commission under sub-section (4) of section 245D of the Income-tax Act or sub-section (4) of section 22D of the Wealth-tax Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12A of the said Act do not apply, has not been revoked on the report of the Advisory Board under section 8 of the said Act or before the receipt of the report of the Advisory Board; or (b) such order of detention, being an order to which the provisions of section 9 of the said Act apply, has not been revoked before the expiry of the time for, or on the basis of, the review under sub-section (3) of section 9, or on the report of the Advisory Board under section 8, read with sub-section (2) of section 9 of the said Act; or (c) such order of detention, being an order to which the provisions of section 12A of the said Act apply, has not been revoked before the expiry of the time for, or on the basis of, the first review under sub-section (3) of that section, or on the basis of the report of the Advisory Board under section 8, read with sub-section (6) of Section 12A, of the said Act; or (d) such order of detention has not been set aside by a court of competent jurisdiction; (v) to any person notified under sub-secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al at the time of filing declaration under section 88 and not fictional. The term 'pending' means something undecided; not terminated. A proceeding is 'pending' as soon as commenced and until it is concluded, i.e., so long as the forum having taken cognizance of the proceeding makes an order on the matters in issue. The proceeding shall be ceased to be pending once it is decided. 12. On the date the scheme came into force with effect from 1st September, 1998, the appeal filed by the petitioners against the order-in-original dated 31-5-1996 was admittedly pending before the Commissioner of Central Excise (Appeals). Under section 88 of the Finance Act, 1988, the declaration could have been made up to 31st January, 199 (sic). The appeal preferred by the petitioners was heard on 10-12-1998 and the order-in-appeal came to be issued on 14-1-1999. The appeal having already been disposed of on 14-1-1999 by the Commissioner of Excise (Appeals), we find it difficult to hold that the said appeal was pending in so far as the petitioners was concerned until the receipt of the order-in-appeal on 23-2-1999. By no stretch of imagination, the appeal that came to be disposed of by the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax, advance tax paid, if any, had to be deducted under Section 90; the DA had to determine the amount payable and for that purpose, he had to determine the tax arrear as well as the disputed amount as defined under Section 87(f). Thus, the DA had to make an assessment of tax arrears, disputed amount and amount payable for each year of assessment; that the appeal was barred against the order under Section 90 (see Section 92); that such determination had to be done within 60 days from the receipt of the declaration and based thereon the DA had to issue a certificate. In other words, till the completion of the aforestated exercise, the appellant could not have paid the amount of tax and, therefore, the appellant was not liable to pay interest as his liability accrued only after the ascertainment of the amount payable under Section 90. In the present matter, that exercise has been completed; that taxes have been recovered by the sale of lands; that amounts have been paid pursuant to the determination by the DA, may be under the orders of the High Court and, therefore, we do not wish to reopen the matter. 14. In the case of Dr. Renuka Datla this court has held on interpretation of Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of Income-tax (Appeals) as well as the High Court have proceeded upon an interpretation of the phrase "tax arrears" de hors the definition under section 87(m) as quoted above. In this case, there was a determination of the amount taxed by the original assessment order on March 31, 1995, i.e., before March 31, 1998. The determination was modified by the orders dated November 17, 1997, and December 31, 1998, pursuant to the Commissioner of Income-tax (Appeals)'s order. The determination on December 31, 1998, was not a fresh assessment for the purposes of the scheme but the modification of the original "determination" by the assessment order dated March 29, 1996. It is not in dispute that the modified demand was not paid by the appellant on the date when the declaration was filed. Whether the modified demand is as a result of concession or otherwise is not a relevant consideration for the purposes of section 87(m). The section itself makes no such distinction between a conceded demand and any other for the purposes of the Scheme. Section 87(f) appears to fortify the position by the definition of "disputed tax" as "the total tax determined and payable in respect of an assessment yea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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