2023 (3) TMI 692 - AT - Service Tax

Tribunal grants appeal under SVLDR Scheme, finding no mis-declaration, overturning Commissioner's decision.

Hari Shankar Versus Commissioner of Central Excise & Central Goods and Service Tax, Jaipur, Rajasthan

The Tribunal allowed the appeal, finding the appellant eligible for the SVLDR Scheme as no mis-declaration was found, and no pending inquiry existed at ... Short payment of service tax - SVLDR Scheme - suppression of facts from the Department regarding pending investigation against them - HELD THAT:- The issue herein is squarely covered by the ruling of Hon’ble Bombay High Court in the case of M/s. New India Civil Erectors Pvt. Ltd. [2021 (3) TMI 545 - BOMBAY HIGH COURT] where it was held that whenever and wherever the scheme talks about an enquiry or investigation or audit, the date 30.06.2019 carries considerable significance and becomes relevant. The enquiry or investigation or audit should commence prior to 30.06.2019. Though Clause (f) of subsection (1) of Section 125 does not mention the date 30.06.2019 by simply saying that a person making a voluntary disclosure after being subjected to any enquiry or investigation or audit would not be eligible to make a declaration, the said provision if read and understood in the proper context would mean making of a voluntary disclosure after being subjected to an enquiry or investigation or audit on or before 30.06.2019. Such a view if taken would be a reasonable construct consistent with the objective of the scheme. Further, it is observed that no mis-declaration has been found in the declaration filed under the Scheme by the appellant. Further, no enquiry was pending against the appellant as on the date of filing of the declaration under the scheme. Appeal allowed. Issues:1. Eligibility for availing the benefit of SVLDR Scheme.2. Suppression of facts regarding pending investigation.3. Interpretation of Section 125(1)(e) of Finance Act(2), 2019.Analysis:Issue 1: Eligibility for availing the benefit of SVLDR SchemeThe appellant, engaged as a Direct Selling Agent, did not pay service tax on a turnover of Rs.59,20,358/- from April 2014 to June 2017, believing it was not chargeable. Subsequently, under the SVLDR Scheme, the appellant voluntarily disclosed and paid Rs.8,33,372/- towards service tax, receiving a discharge certificate. However, a show cause notice was issued for short payment of service tax. The Revenue contended that the appellant, under investigation, suppressed facts and was ineligible for the SVLDR Scheme. The Commissioner (Appeals) upheld the Revenue's decision, stating that the appellant was not eligible for the scheme due to pending investigation and non-quantification of duty/tax by 30.06.2019. The appellant challenged this decision before the Tribunal, arguing that no summons or inquiry was initiated against them before 30.06.2019, and no false statements were made. Citing a Bombay High Court case, the appellant sought the benefit of the SVLDR Scheme. The Tribunal, considering the facts, allowed the appeal, finding the appellant eligible for the scheme as no mis-declaration was found, and no pending inquiry existed at the time of filing the declaration.Issue 2: Suppression of facts regarding pending investigationThe Revenue alleged that the appellant suppressed facts about summons issued by DGGSTI, GRU, Ghaziabad before applying for settlement under the SVLDR Scheme, indicating an intention to hide the investigation. The Commissioner (Appeals) agreed with this assessment, stating that the appellant's actions showed an attempt to conceal the investigation and were therefore ineligible for the scheme. However, the Tribunal, after considering the appellant's arguments and the absence of any false statements, found no basis for the Revenue's claim of suppression of facts, ultimately allowing the appeal and restoring the original order.Issue 3: Interpretation of Section 125(1)(e) of Finance Act(2), 2019The Revenue argued that the appellant's failure to quantify duty/tax by 30.06.2019 made them ineligible for the SVLDR Scheme under Section 125(1)(e) of the Finance Act(2), 2019. The Commissioner (Appeals) upheld this interpretation, leading to the rejection of the appellant's benefit under the scheme. However, the Tribunal, following the precedent set by the Bombay High Court, found that no pending inquiry existed at the time of filing the declaration, and no mis-declaration was present. Therefore, the Tribunal allowed the appeal, setting aside the Commissioner's decision and restoring the original order in favor of the appellant.