TaxTMI 
TaxTMI 
2020 (4) TMI 446
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....dered for settling dispute under the aforesaid scheme. 3. The petitioner had been subjected to six Show Cause Notices for a period of commencing from 16.07.2001 to September 2011. Out of the six Show Cause Notices, the first Show Cause Notice was adjudicated, which went up to the Tribunal. The Tribunal vide Final Order No.1287 of 2008 dated 17.11.1980 had partly allowed the appeal's and partly rejected. 4. The demand for the period prior to 10.09.2004 was set aside and for the period after 10.09.2004 upto March 2006 was upheld. The petitioner took up the issue before the Division Bench of this Court. The Division Bench of this Court by its order, allowed the petitioner's appeal in (2015) 86 VST 160 (Mad). The revenue took up the issue on further appeal before the Hon'ble Supreme Court and the same is pending in SLP.Nos.11840 and 11841 of 2016. 5. The petitioner admits that remaining 5 Show Cause Notice proceedings have been kept pending for adjudication and await for final disposal of the departments appeal in SLP. Nos. 11840 and 11841 of 2016. 6. For the period in dispute in the present case that is for the period beginning from 01.10.2007 to 31.12.2012, the petiti....
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....r of Service Tax, (2015) 86 VST 160 (Mad) and in Premier Associates v. Assistant Commissioner of Service Tax, (2018) 49 GSTR 1 (Karn). 9. The learned counsel also drew attention to the decision of the Kerala High Court in Alwaye Sugar Agency v. Commercial Tax Officer, Alwaye and others, (2011) 42 VST 517 (Ker), wherein, the Court considered an identical situation and held that if benefit is not given, it would lead to a very anomalous situation. 10. The learned counsel for the respondent submits that the impugned order cannot be challenged in this writ petition as the petitioner has an alternate remedy by way of appeal under Section 84 of the Finance Act, 1997 and therefore, the writ petition was liable to be dismissed. 11. The learned counsel for the respondent further submitted that the issue as to whether payments made prior to enactment of Finance Act, 2013, can be considered for settling dispute under the aforesaid scheme, is clearly covered against the petitioner by the decision of the Calcutta High Court in Durgapur Diesel Sales and Service Vs. Superintendent (Service Tax) Central Excise, Durgapur, (2015) 59 taxmann.com 407 (Calcutta), wherein, the decision of the Delhi H....
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.... 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 paid or short-levied or shortpaid has been initiated by way of- (i) search or premises under Section 82 of the Chapter; or (ii) issuance of summons under Section 14 of the Central Excise Act, 1944, as made applicable to the Chapter under Section 83 thereof: or (1 of 1944) (iii) requiring production of accounts, documents or other evidence under the Chapter or the rules made thereunder; or (b) an audit has been initiated, and such inquiry, investigation or audit is pending as on the 1st day of March, 2013, then, the designated authority shall, by an order, and for reasons to be recorded in writing, reject such declaration." 15. During the Budget speech on 28.02.2013 when the Finance Bill 2013 was introduced, the Finance Minister has stated the reasons for providing for such a Scheme in the Finance Bill. Paragraph 183 of the Budget speech is re-produced below: "183. While there are nearly 17,00,000/- registered assessees under servi....
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....respect of any period on any issue, no declaration shall be made of his tax dues on the same issue for any subsequent period. 18. In this case, admittedly, the petitioner has been issued with the Show Cause Notice to demand service tax from the petitioner on the commission received by the petitioner on its re-insurance business. The case has also been adjudicated by the Commissioner of Service Tax vide Order-in- Original No.2/2007 dated 31.01.2007, wherein, the demand of Rs. 1,42,44,880/- was confirmed. This issue is now pending before the Hon'ble Supreme Court. 19. Similarly, vide Order in Original No.19/2010 dated 03.11.2010, the Commissioner has confirmed the demand for the period between December 07 to December 08. On the date of the writ petition, an appeal against the said order was said to be pending before the CESTAT while rest of the show cause notices were pending adjudication and were awaiting the order of the Honourable Supreme Court. 20. The Finance Act, 1994 was completely overhauled in the Finance Act, 2012. For the first time, the definition of expression "service" was introduced in Section 65B(44) of the Finance Act, 1994. Thus, any activity carried out by a....
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.... Rule 9(c) of the Place of Provisional Rules, 2012 specifically continued the levy on services provided by the petitioner. The issue is the same issue in respect of which it has been issued with Show Cause Notice. 26. Therefore, I am of the view, it is not open for the petitioner to contend that it was entitled to avail the benefit of the Scheme in the light of 2nd proviso to Section 106 of the Finance Act, 2013. Further, the scheme under the Finance Act, 2013 is not available to an assessee who has filed returns under Section 70 of the Finance Act, 1994, but had failed to pay tax. 27. It is evident that a person like the petitioner were not in the contemplation of the Service Tax Voluntary Compliance Encouragement Scheme, 2013. Since the petitioner was not eligible to the aforesaid scheme, the denial of the benefit of aforesaid scheme in the light of the clarification of the Central Board of Excise and Customs, New Delhi vide clarification dated 13.05.2013 bearing reference Circular No.169/4/2013-S.T is not relevant. 28. Thus, it is clear that the Service Tax Voluntary Compliance Scheme, 2013, is not intended for a person like the petitioner. 29. The decision of the Gujarat Hi....