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TaxTMI 
TaxTMI 
TaxTMI 
2024 (12) TMI 469
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....r the amounts already paid by the petitioner, the petitioner was entitled to the benefit under the scheme, without payment of this additional amount of Rs. 1,25,23,051/-. Hence, this petition. 4. Mr Raichandani referred us to the Scheme contained in Chapter V of the Finance Act, 1994 and stressed on Section 124 (2) which provides that the relief available to a declarant under the Scheme should be calculated under sub-section 1 and the same shall be subject to the condition that any amount paid as pre-deposit at any stage of the appellate proceedings under the indirect text 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. 5. Mr Raichandani submitted in the present case, admittedly, the enquiry or investigation commenced on 11 December 2018. He referred us to the impugned order in which it is stated that the enquiry/investigations are....
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....portunities, failed to produce invoices, documents, and ledgers regarding the alleged debt of CENVAT credit to the extent of Rs. 3,27,81,964/-. He submitted that the return filing date cannot be taken as the date of actual debit, availment and utilisation of the credit. He submitted that even the returns were filed after three years, and a false case is tried to be portrayed as if the date of filing of the return corresponds to the date of actual debits or utilisation of credits. Accordingly, he submitted that there is no error in the impugned order or the demand content therein that should warrant interference by this Court. 11. Mr Mishra submitted that the petition involves disputed calculations and the ascertainment of precise dates on which the CENVAT credit was availed and utilised. He also submitted that the petitioner suppressed material documents and did not produce such documents despite requests and opportunities. He concluded that the amount determined is entirely consistent with the Scheme's sections. 12. Mr Mishra submitted that this Court's order dated 28 January 2021 in Writ Petition (L) No. 3135 of 2020 clarifies that the determination was set aside for failure of....
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....ppear convenient. 19. Another circumstance which supports Mr Mishra's contention is the letter dated 1 February 2019 (Exhibit-B of the petition) filed on 6 February 2019, where the petitioner itself stated that payment of Rs. 3,27,81,964/- being Input Credit utilised was made. If that be so, then the petitioner's contention that CENVAT Credit was utilised on the date of filing the return, i.e. 31 December 2019 is incorrect. We have addressed this issue because the petitioner has taken self-contradictory stands when caught on the wrong foot. 20. The petitioner's changing stands on the payment date through the CENVAT Credit Ledger is reason enough not to interfere with the impugned determination. Such mindless but self-serving shifting was without realising they were being caught making untrue and false statements at every step. The advantage of speaking the truth is that one does not have to remember what was said in the past. A litigant with such an approach should not expect equitable relief by invoking extraordinary jurisdiction of this Court. 21. The verification clause in the declaration filed by the petitioner categorically certified that the information given was c....
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....n or before the 30th day of June, 2019 is- (i) rupees fifty lakhs or less, then, seventy per cent. of the tax dues; (ii) more than rupees fifty lakhs, then, fifty per cent. of the tax dues; (e) where the tax dues are payable on account of a voluntary disclosure by the declarant, 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." 24. In terms of Section 124 (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, investigati....
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....it was utilised not before 11 December 2018 or 06 February 2019 but after 11 December 2018. 29. Despite the Court raising this issue during the hearing, the petitioner could not produce or show any document to justify that the CENVAT Credit was used to discharge Output service tax liability after 11 December 2018. Even the respondents gave the Petitioner sufficient opportunity to prove this crucial aspect. The onus squarely lay on the petitioner, which the petitioner has miserably failed to discharge in the present case. Changing stances from time to time also does not help the petitioner's case. 30. Mr Raichandani referred to the CENVAT Credit Rules, which state that service tax must be paid by the 5th or 6th day of each month. There are rules for filing periodic returns. Mr Raichandani, however, submitted that the petitioner may have breached these Rules, but as long as a return was filed after payment of the late fee, this circumstance could not be held against the petitioner. We cannot agree. 31. The circumstance that no timely returns were filed, coupled with the non-production of credit ledgers despite repeated opportunities, entitles the respondents to draw an adverse inf....
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....r Rules 5, 6 and 7 and therefore, these dates cannot be treated as the date when the actual debit took place. In our view, in paragraph No. 10.3 and 10.4, the respondents have categorically stated that these dates are based on verification of the CENVAT credit ledger. The petitioner did not produce before us any CENVAT credit ledger or any other document to show that these dates were wrong. Therefore, we cannot accept this submission of the petitioner. 36. The interpretation of Rules 5 and 6 of the Service Tax Rules also does not support the petitioner's case. The rules militate against the petitioner's contention. Based on the rules, an adverse inference could be drawn against the petitioner. The petitioner, having failed to produce or show any credible material, cannot now urge that the Petitioner may have breached the rules; still, since the petitioner has filed belated returns with a late fee, it should be presumed that the credit was availed and utilised on the filing date. The petitioner cannot expect some premium for having breached the rules. 37. No credible material supports the Petitioner's case about payment before 06 February 2019 or 11 December 2018. Factors like....