TaxTMI 
TaxTMI 
TaxTMI 
2025 (1) TMI 226
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....duplication to the extent of Rs. 19,15,491/- was in violation of the principles of natural justice, taken without hearing R1. At the outset, there is no provision under Chapter V of the Finance Act 1994 requiring the Appellate Commissioner to hear the Revenue while deciding a first appeal. Section 85 (5) of the Finance Act, that stipulates the procedure to be followed by R2 in appeal, does not require him to extend an opportunity of hearing to the revenue. The provision moreover refers one to the provisions of Section 35 of the Central Excise Act 1944 (CE Act) that governs all matters in regard to a first appeal under service tax law as it would those appeals under central excise law. Section 35 (1) specifically states that 'the appellant' shall be heard in deciding the appeal. By comparison, in hearing an appeal by the Tribunal, Section 36 of the CE Act states that the Tribunal shall hear 'the parties to an appeal' in deciding an appeal. 8. Secondly, the direction to R2 to dispose the petitioners' appeal was issued in the presence of the panel counsel for R1and paragraph 7 of my order is specific to the effect that the petitioner shall be heard. If at all the Revenue was of the ....
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.... demand. This argument is also misconceived. The petitioner, as confirmed by the order of R2, is right about the double demands raised for Periods 1 and 2. Thus, as far as the demand of Rs. 19,18,375/- is concerned, it ought not to have been raised at all. The remaining demand of Rs. 9,98,350/- corresponding to Period 2 also stands covered/telescoped by the amount of Rs. 80,74,333/- already paid for the same period earlier. In stating this, I have taken note of the position that the total taxable value of the two projects under both SCN 1 and 2 is identical. (See the Annexures to the SCNs). 13. The conflicting computations of the petitioner and respondents are as extracted below:- Petitioner's declaration under Scheme Tax Dues Rs. 29,16,716.00 Tax Relief Rs. 20,41,701.00(70%) Tax dues less tax relief Rs. 8,75,015.00 (30%) Pre-deposit/Other deposit Rs. 19,15,491.00 Tax dues under SVLDRS Rs. 0 Revenue's Computation under impugned order:- S.No. Category Issue Involved Time Period Tax Dues Tax Relief Pre-Deposit/any other Deposit of Estimated Amount Payable From Period To Period Name Amount Duty Name Amount 1 Litig....
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....nd Service Tax Appellate Tribunal [CESTAT for short] and pre-deposited a sum of Rs. 99,94,773/- under Section 35F of the Central Excise Act, 1944 as made applicable to appeals under Finance Act, 1994. 6. As far as the amount demanded in the second mentioned Show Cause Notice dated 09.02.2012 and confirmed vide Order-in-Original No. 48/2016-17 dated 14.01.2016 is concerned, the respondent had preferred an appeal before the Commissioner of Service Tax (Appeals). 7. According to the petitioner, the demand confirmed in Order-in-Original No. 48/2016-17 dated 14.01.2016 was a duplication of a part of the demand already confirmed in Order-in-Original No. 5/2013 dated 30.01.2013. Therefore, the petitioner did not effect the statutory pre-deposit, 8. By virtue of Communication dated 21.12.2016 bearing reference No. C.IV/2/10/2016 (STA-II) issued by the Office of the Superintendent of Central Excise Service Tax (Appeals-II), the respondent's appeal against the Order-in-Original No. 48 of 2016-2017-II dated 14.10.2016, was returned on the ground that the respondent had failed to make mandatory pre-deposit under Section 35-F of the Central Excise Act, 1944 as made applicable to the appe....
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....spute in the above mentioned Order in Original No. 48/2016-17 dated 14.10.2016 relates to the period between 2008-09 & 2009-10. 16. The declaration was also processed in Form SVLDRS-3 dated 06.12.2019 whereby as against the tax due of Rs.29,16,716.20, confirmed vide Order-in-Original No. 48/2016 17-ST-II dated 14.01.2016, the respondent was granted partial relief and thereby, the respondent was called upon to pay a sum of Rs. 8,75,015/- (being 30% of Rs. 29,16,716/-), for settling the dispute under the aforesaid Scheme. 17. However, it is the claim of the respondent that it had already paid an amount of Rs. 19,15,491/- prior to the filing of Form SVLDRS-1 and therefore, the case of the petitioner was to be settled without any additional payment, if the aforesaid amount of Rs. 19,15,491/- was adjusted towards the amount payable under the scheme. 18. As the amount that was remitted by the appellant originally towards pre-deposit for the demand confirmed vide Order-in-Original No. 5/2013 dated 30.01.2003 in the first mentioned Show Cause Notice No.443/2011 dated 12.10.2011 was in excess, it is the case of the respondent that such pre-deposit ought to have been treated as pre-deposi....
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....cember 2008 to March 2009, which is appropriated by Order-in-Original No. 5/2013 dated 30-1-2013, is way above the mandatory 7.5% of the total demand of Rs. 29,16,716/-, raised and confirmed, as required under Section 35F of Central Excise Act, 1944. Hence, the same is to be considered as a pre deposit in terms of Section 35F of the Central Excise Act, 1944, and accordingly the appeal is admitted. (ii) The appellant has apparently filed Declaration under SVLDRS, 2019 in respect of the present appeal, against OIO No. 48/2016-17 in SCN 20/2012 and has approached the Hon'ble High Court by filing a Writ Petition vide WP No. 477 of 2020, which has stayed operation of the Order in Form SVLDRS-III dated 6.12.2019 rejecting their declaration under the Scheme. Under the circumstances, the appeal against the Order-in-Original No. 48/16-17 ST-II dated 14.10.2016 is premature and therefore to be decided at later stage." 24. Thus, it stands confirmed that a sum of Rs. 19,15,491/- was paid in excess of amount demanded from the respondent vide Order in Original No. 48/2016 -2017-ST-II dated 14.10.2016, in respect of the second mentioned show cause notice covering the period between April 2....