TaxTMI 
TaxTMI 
2022 (6) TMI 616
X X X X Extracts X X X X
X X X X Extracts X X X X
....s already paid by the petitioner. 3. The petitioner is engaged in Erection Commission and Installation Services. The dispute arose as to the correct tax liability to be paid by the petitioner for the services rendered by the petitioner under the works contract executed by the petitioner. The petitioner was engaged in execution of Erection Commission and Installation Services which was liable to tax both under TNVAT Act, 2006 and under Chapter V of the Finance Act, 1994. 4. The case of the petitioner was investigated and eventually a Show Cause Notice dated 18.06.2018 was issued to the petitioner by the Additional Director General, Directorate General of Goods and Services Tax Intelligence (DGGSI), whereby the petitioner was called upon to pay a total tax liability of Rs.3,49,09,640.00/- as service tax for a period between October 2012 to March 2016, under proviso to Section 73(1) of the Finance Act, 1944. 5. It appears that during the course of investigation, the petitioner had also deposited sum of Rs.41,81,191.00/- and therefore it was sought to be adjusted and appropriated as against the above service tax liability. The Show Cause Notice also proposed to deny the Input Tax Cr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ount of Input Tax Credit utilised by the petitioner for discharging the tax liability is to be adjusted for proper determination of the amount under the scheme and therefore if a sum of Rs.1,03,71,501/- is adjusted from the total liability under Section 124 of the Finance (No.2) Act, 2019 of Rs.1,74,54,820/-, there would be an excess of Rs.11,72,504/- which is to be refunded back. 12. The learned counsel for the petitioner has also drawn my attention to a literature (frequently asked questions) of the Central Board of Indirect Taxes and Customs, New Delhi, issued after the Finance (No.2) Act, 2019 was passed. 13. In this connection, a specific reference was made to question No.47 and the answer given by the Central Board of Indirect Taxes and Customs, New Delhi reads as under:- "Q.47. I have already paid duty/tax by utilising the input credit, and the matter is under dispute. Will this duty/tax already paid through input credit be adjusted against my duty/tax liability calculated under the Scheme? Ans. Yes. In such cases, duty/tax already paid through input credit shall be adjusted by the Designated Committee at the time of determination of final amount payable under the Sche....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d in 2019 (26) G.S.T.L. 470 (Del.) viii.Seventh Plane Networks Private Limited Vs. Union of India, repored in 2020 (41) G.S.T.L. 165 (Del.) ix. H.M.Infratech Private Limited Vs. Designated Committee Sabka Vishwas (LDRS), Bangalore, reported in 2021 (49) G.S.T.L. 282 (Kar.) x. H.M.Trust Vs. Designated Committee Sabka Vishwas (LDRS), Bangalore, reported in 2021 (49) G.S.T.L. 278 (Kar.) xi. Fork Media Private Limited Vs. Union of India, reported in 2021 (47) GSTL 128(Bom.) xii.Vaishali Sharma Vs. Union of India, reported in 2020 (40) G.S.T.L. 441 (Del.) 17. Appearing on behalf of the respondents, the learned counsel submits that the writ petition is without merits and is therefore liable to be dismissed. 18. At the outset, the learned counsel for the respondents submits that the Sabkha Vishwas (Legacy Dispute Resolution) Scheme, 2019 is a composite scheme and therefore the manner in which the petitioner is seeking to upset the determination of the second respondent itself shows that the petitioner is disqualified and is not entitled for the benefit of scheme. 19. It is further submitted that in the context of Kar Vivad Samadhan Scheme, the Hon'ble Supreme Court in Uni....
X X X X Extracts X X X X
X X X X Extracts X X X X
....turns for the corresponding period was not in consonance the amounts they have claimed. 23. The learned senior standing counsel for the second and third respondents therefore submits that the writ petition is devoid of merits and is therefore liable to be dismissed by directing the petitioner to pay the amounts as determined in the impugned order. 24. The learned CGSC for the first respondent has also drawn attention to paragraphs 14 and 15 of the Counter Affidavit wherein it has been observed as under:- "14. It is also submitted that the amount of Rs.1,03,71,501/- shown as pre-deposit appears to be incorrect in as much as the said credit has been demanded in the Show Cause Notice dated 18.06.2018 issued by DGGI, Pune as it appears to be wrong availment of Cenvat Credit. Hence, the said amount of CENVAT reversed or reversible cannot be called as "Pre-deposit". Since the word "Pre-deposit" as understood in legal sense is an amount that is paid by the assessee as "condition amount" for entertaining an appeal. It is not the amount that is liable to be reserved at the stage of investigation since it pre-supposes the finalization of quantified amount by any of Order-In-Original. 1....
X X X X Extracts X X X X
X X X X Extracts X X X X
....27,324 - 1,74,54,820) in excess. 33. On the other hand, the department has calculated the liability of the petitioner and the aforesaid scheme at fifty percent of the amount demanded in the show cause notice which includes the tax due of Rs.4,56,44,742/- = Rs.3,49,09,640/- + Rs.1,03,71,501/-, less the amount pre-deposited by the petitioner for a sum of Rs.74,02,155/-. Thus, the liability has been determined as Rs.1,54,20,216/-. The calculation as per the petitioner and the respondent are as under: Sl. No. Title Average of the Petitioner Average of the Respondent 1. Tax Dues Rs.3,49,09,640/- Rs.4,56,44,742/- 2. Pre-deposit mentioned in the Show Cause Notice - Rs.41,81,191/- 3. Challans paid towards service tax subsequently - Rs.32,20,694/- 4. Total Pre-deposit Rs.74,02,155/- 5. Tax dues less tax relief Rs.1,74,54,820/- Rs.2,28,22,371/- 6. Pre Deposit Rs.1,95,27,324/- - 7. Tax dues under SVLDRS Rs.0/- Rs.1,54,20,216/- [(e)-(d)] 34. The Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 in Chapter V of the Finance (No.2) Act, 2019, is a separatecode by itself along with Sabka Vishwas (Legacy Dispute Resolution) Scheme Rules, 2019.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....clarant exceeds the amount payable by the declarant, as indicated in the statement issued by the designated committee, the declarant shall not be entitled to any refund. 36. As per sub-clause(b) of Section 123, where a show cause notice under any of the indirect tax enactment has been received by the "declarant" on or before the 30th day of June, 2019, then, the amount of duty stated to be payable by the declarant in the said notice. 37. As per the proviso, if the said notice has been issued to the declarant and other persons making them jointly and severally liable for an amount, then, the amount indicated in the said notice as jointly and severally payable shall be taken to be the amount of duty payable by the declarant. 38. Section 123 and 123(b) reads as under: "Section 123:Tax dues - For the purposes of the Scheme, tax dues means (a) where- (i) a single appeal arising out of an order is pending as on the 30th day of June, 2019 before the appellate forum, the total amount of duty which is being disputed in the said appeal; (ii) more than one appeal arising out of an order, one by the declarant and the other being a departmental appeal, which are pending as on the 30t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y the declarant; 11 of 1986. 22 of 2004. 17 of 2007. 20 of 2015. 28 of 2016. Tax dues. SEC. 1] THE GAZETTE OF INDIA EXTRAORDINARY 51 (c) where an enquiry or investigation or audit is pending against the declarant, the amount of duty payable under any of the indirect tax enactment which has been quantified on or before the 30th day of June, 2019; (d) where the amount has been voluntarily disclosed by the declarant, then, the total amount of duty stated in the declaration (e) where an amount in arrears relating to the declarant is due, the amount in arrears". 39. A Designated Committee is merely required to examine the correctness of the declaration made by the declarant under Section 126 of the Act in the manner as may be prescribed. Section 126 reads as under: 126. (1) The designated committee shall verify the correctness of the declaration made by the declarant under Section 125 in such manner as may be prescribed: Provided that no such verification shall be made in case where a voluntary disclosure of an amount of duty has been made by the declarant. (2) The composition and functioning of the designated committee shall be such as may be prescribed. 40. Once the decl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bes the forms for filing declaration under the provisions of the Chapter V of the Finance Act,2019 under the scheme and steps to be taken by the Designated Committee while adjustment of amount pre-deposited by declarant is permissible. The adjustment of liability through input tax credit is not permissible as is evident from reading Section 130 of the Act, which has been extracted above. 47. However, clarification of the Board dated 27.08.2019 in Frequently Asked Questions (FAQ), bearing reference No:C.No.1071/4/19-CX-08 at Sl.No.47, it has however been clarified as under:- Q47: I have already paid duty/tax by utilizing the input credit, and the matter is under dispute. Will this duty/tax already paid through input credit be justified against my duty/tax liability calculated under the Scheme? Ans: Yes. In such cases, duty/tax already paid through input credit shall be adjusted by the Designated Committee at the time of determination of final amount payable under the Scheme. 48. The petitioner claims to have availed input tax credit of Rs.1,82,08,250/- and submitted invoice for a sum of Rs.1,78,44,649.00 and not for Rs.3,63,601/-. However, the petitioner has availed cenvat cre....