TaxTMI 
TaxTMI 
2021 (12) TMI 1486
X X X X Extracts X X X X
X X X X Extracts X X X X
....artment assessed the short paid service tax for the period from 2012-13 to 2017-18 to the tune of Rs. 1,53,11,355/-. The working of tax liability has been mentioned in the show cause notice dated 24.09.2020 which is impugned here. The petitioner paid service tax of INR 20,41,602/- and INR 11,10,675/- respectively. 3.1. In the year 2019, Central Government by Finance (No. 2) Act, 2019 introduced Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 (hereinafter referred to as 'the SVLDR Scheme') providing for settlement of legacy disputes relating to central excise and service tax by paying certain specified percentage of tax dues. 3.2. On 16.09.2019, the petitioner informed the respondent no.3 showing his inclination to opt for the SVLDR Scheme. On 24.11.2019, an application was filed and the declaration was made under the category 'Investigation, Inquiry or Audit' and sub-category 'Investigation by Commissionerate'. The petitioner declared the total sum of Rs.1,29,36,305/- as unpaid service tax liability and accordingly, INR 53,57,477.50/- was required to be paid under the scheme after claiming the deduction of pre-deposite of INR 11,10,675/-. 3.3. The petitioner was una....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ow cause notice dated 23.09.2021 issued by the respondent no.05 - Deputy Commissioner of Central GST and Central Excise Division-I, Surat at Annexure-Q; (B) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order granting the payment of INR 53,57,477.50/- in 24 equal monthly installments to the petitioner as per declaration under Form SVLDR-1 by the petitioner on 31.12.2019 under SVLDR Scheme, 2019; (C) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or quashing and setting aside the impugned show cause cum demand notice dated 24.09.2020 issued by the respondent no. 03 - at Annexure-M; (D) During the pendency and final disposal of the present petition Your Lordships may be pleased to stay further operation, implementation and execution of the impugned show cause notice dated 24.09.2020 issued by the respondent no.03 - Assistant Commissioner at Annexure-M; (E) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case." ....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... Firstly, as to whether the request of grant of installments of the liability arisen in SVLDRS-3 can be permitted and, secondly, whether the show cause notices dated 24.09.2020 and 23.09.2021 would require any indulgence. 7. Without reiterating all that has been pleaded before this Court and as mentioned herein above, the Court needs to refer as to whether the difficulties presented by the petitioner before us is genuine for the Court to intervene and indulge. 7.1. It is quite apparent from the chronology of the events that the petitioner was subjected to the search and afterwards when the respondent has come out with the SVLDR Scheme in the year 2019, the last date of payment of dues by the declarant under sub-section (5) of Section 127 was eventually fixed at 28.02.2021. 7.2. The two aspects would weigh with this Court, firstly, it was an unprecedented circumstance of the worldwide pandemic due to COVID-19 virus. The Apex Court in Miscellaneous Civil Application No. 665 of 2021 in SMW(C) No. 03 of 2020 due to outbreak of COVID-19 pandemic had taken a suo motu cognizance of the difficulties that may be faced by the litigants in filing petitions/applications/suits/appeals....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n remaining, all persons shall have a limitation period of 90 days from 03.10.2021. In the event the actual balance period of limitation remaining, with effect from 03.10.2021, is greater than 90 days, that longer period shall apply. III. The period from 15.03.2020 till 02.10.2021 shall also stand excluded in computing the periods prescribed under Sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings. IV. The Government of India shall amend the guidelines for containment zones, to state. "Regulated movement will be allowed for medical emergencies, provision of essential goods and services, and other necessary functions, such as, time bound applications, including for legal purposes, and educational and job-related requirements" 8. This Court noticed that in his letter addressed to the Joint Commissioner on 01.07.2020, the petitioner ha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y suit has been extended for initiation and termination of the proceedings, noticing the worldwide phenomena of pandemic due to COVID-19 virus and the decision of the Apex Court rendered in case of Small Scale Industrial Manufactures Association (Regd.) vs. Union of India and Others [2021 SCC OnLine SC 246] according to us, this scheme which is basically brought for giving a quietus to the disputes existing between the parties and hence, the request of the petitioner for allowing him to make the payment under the SVLDR Scheme needs to be considered. On its own, the authority concerned had extended the same under sub-section (5) of Section 127 upto 30.06.2020 and for the Union Territory of Jammu and Kashmir and Union Territory of Ladakh, the last date for payment of dues was extended till 20.02.2021. 10. It is not in dispute that the report of DG (System) and the Zonal Chief Commissioner of CGST and CX, as pointed out to us, reflects the amount of Rs. 3972.01 crores pending for realization as on 01.07.2020 in respect of 23,781 ARNs. Vide Circular dated 14.07.2020, the Chairman of CBIC directed the Zonal Chief Commissioner to contact major declarants who were unable to pay upto 30....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ur vs. Ratan Melting & Wire Industries [(2008) 13 SCC 1] which later on was followed in State of Tamil Nadu vs. India Cements Ltd. [(2011) 13 SCC 247] is heavily relied upon. This Court in case of Dharamshil Agencies vs. Union of India [SCA 8255/2019, decided on 23.07.2021] has held that the show cause notice without issuance of pre-consultation is null and void. 15. An amount due under the show cause notice is Rs. 1,34,16,629/- on 24.09.2021 along with interest under Section 75 of the Finance Act, penalty and late fees. The Board has made pre-show cause notice consultation mandatory for the Principal Commissioner/Commissioner prior to the issuance of show cause notice in case of demand of duty above Rs. 50 lakhs. This Court in case of Dharamshil Agencies (supra) has also dealt with the very issue as under: - "6. As stated earlier, the broad facts as stated in the petition by the petitioners, are not in dispute. The petitioners have basically challenged the impugned show-cause notice dated 12.4.2019 on the ground of being violative of the master Circular dated 10.3.2017 issued by the Board (Annexure-E). The short question, therefore, that falls for consideration before ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the instance of the respondent authority, in utter disregard of the said mandate, and without considering the laudable object behind issuing such circular, the respondents issued the impugned pre-show-cause notice consultation dated 12.4.2019 delivering the same to the petitioner assessee at 13.55 hours and calling upon them to remain present before the respondent No.2 at 16.00 hours. The petitioners having requested for reasonable time for the effective consultation, without considering the said request, the respondent No.2 issued the show-cause notice on the same day i.e. on 12.4.2019. Such a high-handed action on the part of the respondent No.2, not only deserves to be deprecated but to be seriously viewed. 9. Though it was sought to be canvassed by the learned Advocate Mr.Vyas for the respondents that the petitioners had sought time to see that the demand for the relevant period gets timebarred as the returns for the relevant period were filed on 15.4.2014 and the demand for the recovery of service tax could be made within the period of five years, which was to expire on 15.4.2019, the Court does not find any substance in the same. It was the respondent authorities wh....
X X X X Extracts X X X X
X X X X Extracts X X X X
....her authority has the jurisdiction to deal with the matter and may direct that authority to deal with it or where the order of the authority which has the jurisdiction is vitiated by circumstances like failure to observe the principles of natural justice the Court may quash the order and direct the authority to dispose of the matter afresh after giving the aggrieved party a reasonable opportunity of putting forward its case. Otherwise, it would mean that where a Court quashes an order because the principles of natural justice have not been complied with it should not while passing that order permit the Tribunal or the authority to deal with it again irrespective of the merits of the case. ..." 11. In view of the above, without expressing any opinion on the merits of the demand raised in the impugned show-cause notice, the Court hereby sets aside the impugned notice dated 12.4.2019 (Annexure-D) on the ground that the petitioners were not granted an adequate opportunity for the consultation prior to the issuance of the said notice. The parties are relegated to the stage prior to the issuance of the impugned show-cause notice. The respondent No.2 will now issue afresh pre-sho....