TaxTMI 
TaxTMI 
TaxTMI 
2024 (10) TMI 1729
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....ded that service tax returns had not been filed and service tax dues for the relevant period had not been discharged. The appellant attempted to explain out the situation by terming that such non-payment was occasioned only due to financial stringency and since he was unaware that transportation and ocean freight services were exigible to service tax. Thereafter, while the process of investigation was underway, the appellant voluntarily began remitting service taxes as and when funds were available. He filed a return in the year 2019 albeit, without including the portion of transportation of goods and ocean freight charges on the premise that he was not liable to pay any service tax on the said count. During the course of the investigation, an amount of Rs. 2,58,09,285/- had been voluntarily remitted by the appellant towards his tax liability, both as tax paid and as cenvat credit availed. This amount assumes relevance as it later becomes the fulcrum for the contentions put forth by the appellant in the Writ Petition and in this Writ Appeal. 3. In the meanwhile, the Government announced the Sabka Viswas (Legacy Dispute Resolution) Scheme, 2019 on 21.08.2019 (hereinafter referred....
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....vocate appearing on behalf of the appellant vehemently contended that Ext.P6 is legally unsustainable as it militates against the very mandates of the SVLDRS 2019. He points to Section 124 (2) and submits that the relief available to the declarant under the Scheme is to be calculated, 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". He thus contends that under the Scheme, the appellant was only bound to pay 50% of the duty amount payable by him since he had already remitted Rs.2,58,09,285/- during the course of the investigation. Amnesty under the Scheme, he contended, applied even during the inquiry and Ext. P6 to the extent it does not take note of the deposits made is illegal and unsustainable. The learned Senior Advocate invited our attention to Annexures A and B produced on behalf of the appellant as additional documents filed in the W.A. Annexure A is a reply dated 17.08.2020 issued by the Assistant Commissioner in reply to a right to informatio....
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....rned Standing Counsel buttresses the said contention by referring to the voluntary statement filed by the appellant wherein he had specifically admitted the total tax liability, the tax paid as well as the concealed (and thus unpaid) tax amount. It is submitted that the reference in Section 124 (2) of the Finance Act to deposit during inquiry, investigation or audit can only be interpreted to be understood as primarily relating to such disputed tax remaining unpaid illegally. It thus refers to tax/ duty which has not been levied or paid or has been short levied or short-paid or erroneously refunded and hence capable of being the subject matter of an inquiry/investigation or audit. In so far as the amounts remitted by the appellant voluntarily towards tax dues cannot be termed as amounts paid as pre-deposit at any stage of appellate proceedings under the indirect tax enactment or as a deposit made under protest or towards disputed tax/ duty liability made during inquiry, investigation or audit and hence cannot be deducted when issuing a statement (Ext.P6) indicating the amount paid by the appellant. Discussion and finding: 7. As could be gathered from the above, the essential ....
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....t 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. (emphasis added) From a reading of the above, it is discernible that Section 124 explains the deductions that could be made while calculating relief available under the SVLDRS 2019. Section 124(2) which deals with the deduction, only envisages the deduction of amounts that have been paid as 'pre-deposit' or as 'deposit' 'during an inquiry/ investigation'. It follows that amounts that had been paid other than by way of any of 'pre-deposit' or as 'deposit' 'during an inquiry/ investigation' will not be counted towards deduction. It is also relevant to note that Section 124(1)(e) stipulates that the reliefs mentioned in Section 124(1)(a) to (d) shall not be available where the tax dues are payable on account of a voluntary disclosure by the declarant. 8. As regards the appellant is concerned, admittedly an investigation had commenced pursuant to a search in 2015. The sam....
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.... on or before the 30th day of June, 2019; (d) who have been issued a show cause notice under indirect tax enactment for an erroneous refund or refund; (e) who have been subjected to an enquiry or investigation or audit and the amount of duty involved in the said enquiry or investigation or audit has not been quantified on or before the 30th day of June, 2019; (f) a person making a voluntary disclosure,- (i) after being subjected to any enquiry or investigation or audit; or (ii) having filed a return under the indirect tax enactment, wherein he has indicated an amount of duty as payable, but has not paid it; (g) who have filed an application in the Settlement Commission for settlement of a case; (h) persons seeking to make declarations with respect to excisable goods set forth in the Fourth Schedule to the Central Excise Act, 1944. (2) A declaration under sub-section (1) shall be made in such electronic form as may be prescribed. (emphasis added) Sub-section (e) of Section 125 thus mandates that a person, who has been subjected to an enquiry or investigation or audit, and the amount of duty involved ....