voluntary compliance scheme

[Guest]

Is there any provision of withdrawal of immunity under VCES,13,if some short declaration is detected due to calculation mistake within a year, will the declaration be substantially false.

[KASTURI SETHI]

Sir,

Calculation mistake does not amount to false declaration. Case law is appended below:

ST - VCES, 2013 - Tax dues were declared incorrectly due to arithmetical error and appellant suomotu made good balance payment along with interest by 31.12.2014 - It cannot be said that appellant had made a substantially false declaration: CESTAT

MUMBAI, APR 19, 2016: THE appellant,after filing VCES-1 declaration on 31.12.2013, indicating the total dues as ₹ 2,78,118/-paid 50% of the said amount i.e. ₹ 1,39,100/- on the same day. The balance 50% was paid by them in two installments of ₹ 35,288/- and ₹ 1,03,730/- on 13.5.2014 & 30.06.2014 respectively. On finalization of balance sheet, the Chartered Accountant pointed out that the gross receipt was shown short and accordingly the total service tax dues was declared less by ₹ 35,288/-. Considering the short amount declared in the VCES declaration, the balance amount along with interest which comes to ₹ 40,479/- was suomotu paid on 20.12.2014.

The department took a view that in view of the above short-payment and incorrect declaration while filing the VCES-1, the same is to be considered as substantially false and accordingly under a SCN it was proposed to demand ₹ 5,86,789/- without considering the abatement as provided under Notification No. 1/2006-ST dt. 1/3/2006.

The CCE, Aurangabad upheld the allegations leveled in the SCN and after adjusting the amount already paid, confirmed the balance amount of ₹ 3,08,672/- and also demanded interest u/s 75 and equal penalty u/s 78 of FA, 1994.

The appellant is before the CESTAT and after explaining the facts of the case submitted that it was an arithmetical mistake on their part and the revised liability was computed andsuomotu paid by them before 31.12.2014; no finding is given by the CCE to conclude that the declaration was substantially false; as the gross amount is inclusive of food/catering, therefore, they are legally entitled for the abatement of 40% as provided under Notification No. 1/2006-ST.

The AR while reiterating the findings of the CCE submitted that the foremost condition under the VCES, 2013 was to make a true and correct declaration and since the liability declared was found to be wrong, the same would amount to false declaration and for this reason itself the declaration is liable to be rejected.

The Bench, after considering the submissions, observed -

+ The Commissioner has not given proper finding as regard the abatement available to the appellant to the extent of 40% from the gross value as provided under Notification No. 1/2006-ST. On perusal of the books of accounts of the appellant, I find that the gross receipt shown in the balance sheet/profit and loss account is inclusive of catering / food. As per the Notification No. 1/2006-ST the abatement of 40% is allowed subject to condition that the gross amount charge is inclusive of food items. In view of the fact that the cost of the food item is inclusive in the gross amount charged by the appellant, they are entitled for the abatement.

+ As regard, the charge of false declaration, I find that the mistake has occurred due to arithmetic error in quantifying the due and the same was pointed by the appellant themselves and made good by making the payment of correct amount, and for the delay in making the payment, they also paid the interest. From this fact, I do not find any intention of the appellant to make a false declaration. This is only due to arithmetical error that there is mistake in declaring the actual dues. I also find that the appellant have paid the entire amount of correct dues along with interest before the last date i.e. before 31.12.2014.

Holding that there is no reason in not accepting the VCES declaration, the impugned order was set aside and the appeal was allowed.

(See 2016 (4) TMI 728 - CESTAT MUMBAI - M/s Renuka Mangal Seva Kendra Versus Commissioner of Central Excise And Customs, Aurangabad)

 

[Ganeshan Kalyani]

A very good case law is provided by Sri Kasturi Sir. It will solve the query of the querist. Thanks.

AI Summary

Calculation Error in VCES Declaration Not Deemed False; Immunity Maintained; Appellant Granted 40% Abatement A query was raised regarding the withdrawal of immunity under the Voluntary Compliance Encouragement Scheme (VCES), 2013, if a short declaration due to a calculation mistake is detected. Kasturi Sethi responded that a calculation mistake does not equate to a false declaration, citing a case where an appellant corrected an arithmetical error and paid the due balance with interest, which was not considered substantially false by the CESTAT. The appellant was entitled to a 40% abatement as the gross amount included food items. The appeal was allowed, and the VCES declaration was accepted. Ganeshan Kalyani acknowledged the usefulness of the provided case law.