TaxTMI 
TaxTMI 
2022 (6) TMI 616
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....sand Two Hundred and Sixteen only), after adjustment of the amounts 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....
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....yable under the Scheme." 11. It is submitted that as per the above clarification, the amount 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 shal....
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.... Vs. Commr. of Service Tax, Chennai, reported in 2021 (47) G.S.T.L.463 (Mad.) vii.Global Ceramics Private Limited Vs. Principal Commissioner of C.Ex., Delhi-I, reported 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 respond....
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.... Hence, the committee did not consider the input credit of an amount of Rs.1,03,71,501/-." 22. It is therefore submitted that the question of double taxation does not arise since the Show Cause Notice questions the eligibility of CENVAT credit availed and shown in petitioners ST3 returns 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-deposi....
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....as lying un-utilized which was sought to be denied. 32. It is therefore the contention of the petitioner that as against the tax liability under the aforesaid scheme for a sum of Rs.1,74,54,820/- being fifty percent tax liability of Rs.3,49,09,640, the petitioner has paid of sum of Rs.20,72,504/- in excess (Rs.1,95,27,324 - 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 ta....
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....eclarant, then, no relief shall be available with respect to tax dues. (2) The relief calculated under sub-section (1) shall be subject to the condition that any amount paid as pre-deposit at any stage of appellate proceedings under the indirect tax enactment or as deposit during enquiry, investigation or audit, shall be deducted when issuing the statement indicating the amount payable by the declarant: Provided that if the amount of pre-deposit or deposit already paid by the declarant 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 ....
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.... is being disputed is Rs. 900 and hence tax dues are Rs. 900; (b) 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: Provided that 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; 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 r....
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....45. Section 130 of the Act also contains few restrictions. Section 130 reads as under: "130. Restrictions of Scheme: Any amount paid under this Scheme: a) Shall not be paid through the input tax credit account under the indirect tax enactment or any other Act; b) Shall not be refundable under any circumstances; c) Shall not, under the indirect tax enactment or under any other Act; (i) be taken as input tax credit; or (ii) entitle any person to take input tax credit, as a recipient, of the excisable goods or taxable services, with respect to the matter and time period covered in the declaration. 46. The enabling rules prescribes 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.....