TaxTMI 
TaxTMI 
2023 (3) TMI 953
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....ed wherein renting of property was made taxable with effect from 1 June 2007. Petitioner had applied and obtained Service Tax Registration from 16 June 2011 under the category of 'Renting of Immovable Property Service'. It is Petitioner's case that it did not pay service tax to Service Tax Authority under the belief that mere letting out was not a service. However, due to the purported uncertainties about the legal provisions with respect to the levy of service tax during the period, the Petitioner raised invoices on the licensee for service tax which the licensee paid to the Petitioner from time to time. 3. Service Tax Voluntary Compliance Encouragement Scheme, 2013 (for short the "VCES") was introduced by Chapter VI of the Finance Act, 2013. Pursuant to Section 106(1) of the VCES, a person could declare his tax dues for the period 1 October 2007 to 31 December 2012 and upon payment of service tax, there would be immunity from interest and penalty. 4. Petitioner filed Form VCES-1 on 2 July 2013 wherein the Petitioner showed an amount of Rs.3,41,82,926/- as service tax liability for the period October 2007 to March 2011. It is the case of Petitioner that although service tax ....
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.... attachment was not lifted despite the payment, Petitioner filed a Writ Petition (L) No.2139 of 2016 in this Court and vide order dated 8 August 2016 this Court allowed the Petition filed by the Petitioner and set aside the attachment. 10. Thereafter, a show cause notice dated 17 April 2017 was issued to the Petitioner demanding interest amounting to Rs.2,78,90,766/- on the delayed payment of service tax under Section 75 of the Finance Act, 1994. It was stated in the show cause notice that since the Petitioner had failed to pay the minimum 50% of the declared tax dues on or before 31 December 2013 as required under the provisions of Section 107(3) of the Finance Act, 1994, therefore, there was a clear breach of the VCES, 2013 by the Petitioner. The Petitioner filed reply to the show cause notice vide letter dated 29 May 2017 refuting the allegations and contending that no tax dues were payable as tax of Rs.3,10,57,111/- was already paid on 30 June 2014. 11. On 25 June 2018, the Commissioner, CGST & CX, Mumbai South passed an Order-in-Original confirming the entire demand of interest proposed in the show cause notice and dropped the personal penalty under Section 78A on the Di....
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.... part of the Finance Act, 1994 and the Finance Act 2013 which brought in VCES is not one of the enactments specified under Section 122 of the SVLDR Scheme. Apart from that, it was stated that since no duty payment was pending under any of the Indirect Tax Enactments, the case of Petitioner did not fall under the Arrears category of the SVLDR Scheme. 18. Aggrieved by the rejection of the second Form SVLDRS-1 on 6 February 2020 Petitioner has filed this Petition seeking the following reliefs : (a) that this Hon'ble Court be pleased to issue a writ of Certiorari or Mandamus or any other appropriate writ, direction or order, quashing and setting aside order of the Designated Committee made under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 thereby directing the Respondents, to treat the application filed by the Petitioners under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 as valid application. (b) that this Hon'ble Court be pleased to treat the application filed by the Petitioner under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 valid and accept the payment already made as sufficient compliance of the scheme and direct the Respondent....
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.... learned Counsel for the Respondents, relies upon the reply dated 2 August 2022 and opposes the reliefs sought. 24. We have heard Mr. Sridharan, learned Counsel for the Petitioner and Mr. Mishra, learned Counsel for the Respondents and with their able assistance we have perused the papers and proceedings and considered the rival contentions. 25. It is not in dispute that the application dated 27 December 2019 has been rejected on 6 February 2020 on the ground that the VCES has not been referred to or mentioned as one of the enactments under Section 122 of the said Act to which the amnesty scheme is applicable. 26. The grounds of ineligibility as set out in the remarks column is usefully quoted as under : "1. The definition of arrears under Section 121(c) covers the case. Reason for disagreement : Section 122 clearly says that scheme applies only to enactments specified therein. VCES 2013 is not an enactment specified therein. Further the order is defined under Section 121(o) which talks about order of determination under indirect tax enactments in relation to show cause notice issued under such indirect tax enactments. VCES 2013 is not an indirect tax ena....
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....on 122 of the said Act is set out as under : "122 This Scheme shall be applicable to the following enactments, namely :- (a) the Central Excise Act, 1944 or the Central Excise Tariff Act, 1985 or Chapter V of the Finance Act, 1994 and the rules made thereunder; (b) the following Act, namely:- (i) the Agricultural Produce Cess Act, 1940; (ii) the Coffee Act, 1942; (iii) the Mica Mines Labour Welfare Fund Act, 1946; (iv) the Rubber Act, 1947; (v) the Salt Cess Act, 1953; (vi) the Medicinal and Toilet Preparations (Excise Duties) Act, 1955; (vii) the Additional Duties of Excise (Goods of Special Importance ) Act, 1957; (viii) the Mineral Products (Additional Duties of Excise and Customs ) Act, 1958; (ix) the Sugar (Special Excise Duty) Act, 1959; (x) the Textiles Committee Act, 1963; (xi) the Produce Cess Act, 1966; (xii) the Limestone a nd Dolomite Miners Labour Welfare Fund Act, 1972; (xiii) the Coal Mines (Conservation and Development) Act, 1974; (xiv) the Oil Industry (Development) Act,1974; (xv) The Tobacco Cess Act, 197....
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....b and Haryana High Court, in its decision in M/s.Barnala Builders's case, (cited supra), has categorically held that the order passed under VCES is appealable. It has been held so as under: "The impugned order, in our considered opinion, is appealable, under Section 86 of the Indian Finance Act, 1994, particularly as the scheme under which the petitioner has applied, is part and parcel of the aforesaid Finance Act, by virtue of the Indian Finance Act, 2013. Faced with this situation, counsel for the petitioner has pressed into service circular, dated 08.08.2013, issued by the Central Board of Excise and Customs, stating that such an order is not appealable. We are unable to accept correctness of instructions issued by the Central Board of Excise and Customs, for the simple reason that after incorporation of the Service Tax Voluntary Compliance Encouragement Scheme into the Finance Act, all other provisions of the Act except to the extent specifically excluded, apply to proceedings under the scheme. The impugned order passed by the Deputy Commissioner of Central Excise and Service Tax would necessarily be appealable under Section 86 of the Indian Finance Act, 1994.....
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.... M/s. Cavim Properties Pvt. Ltd. is hereby required to show cause to the Commissioner of Service Tax-I, Mumbai, within 30 (thirty) days from the date of receipt of this Notice, as to why the penalty under Section 78A should not be imposed on him" 35. There is, therefore, no doubt that the liability of the Petitioner had arisen under the Finance Act, 1994 which enactment finds mention under Section 122 of the said Act. Therefore, the ground for rejection of Petitioner's second application that the VCES does not find mention as an enactment under Section 122 would therefore not survive. In view of the above discussion, the finding of the Designated Committee on the basis of the decision of the Madras High Court in Narsimha Mills Private Limited vs. Commr. Of C. Ex. (Appeals), Coimbatore (supra) appears to be erroneous. 36. Coming to the observation of the Designated Authority that amount of duties having been paid, there is no duty pending recovery under the indirect tax enactments, we have already noted that in the facts of the case, the show cause notice demanding the interest amount was issued to Petitioner under Section 75 of the Finance Act, 1994 and which related to the s....