TaxTMI 
TaxTMI 
2025 (1) TMI 226
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....ting the contention of the petitioner that there is 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 p....
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.... sum of Rs. 15,18,561/- in regard to O in O 1 that, by application of Section 130 (2) shall neither be refunded nor utilised towards any other 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 Ta....
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....h 2010 48/2016-17-ST-II 14.10.2016 Amount Rs.1,69,52,423/- Amount Rs.29,16,760/- 5. It appears that as far as the amount demanded in the first mentioned Show Cause Notice dated 12.10.2011 and confirmed vide Order-in-Original No. 5/2013 dated 30.01.2013, the respondent had preferred an appeal before the Central Excise and 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 b....
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.... of the Finance Act, 2019 was processed on 14.11.2019 whereby the amounts mentioned in Form-3 was to be paid by the respondent. 15. In Form-1, the appellant had referred to Order in Original No. 48/2016-2017 - ST-II dated 14.10.2016 and stated that there has been duplication of demand and thereby declaring a pre-deposit of Rs. 19,15,491/- in Form-1. The dispute 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 pa....
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....eal and has approached this Court in W.P.No.477 of 2020 which has stayed operation of impugned order in Form SVLDRS-III dated 06.12.2019. 23. Operative portion of the order in A.No.001/2020 (CTA-II) dated 27.01.2020 reads as under:- 12. (i) Therefore, I am of the considered opinion that the amount paid by the appellant to the extent of Rs. 19,18,375/-, for the period December 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 again....