Case Law Details
B.L. Goel & Company Vs Commissioner of Central Excise & Central Goods & Service Tax (CESTAT Delhi)
The brief facts are that the appellant is engaged in running Works Contract Services and services of construction of residential complexes during the period 2013-14 till 2017-2018 (June 2017). Show cause notice dated 23.04.2019 was issued demanding service tax of Rs.5,34,58,093/-. During the investigation stage, the appellant had deposited vide 8 separate challans a total amount of Rs.29,36,382/-. These amounts were deposited during September and December, 2018. In the statement recorded of Shri Sunil Goel, Authorised Signatory of the appellant on 22.03.2019, he stated that this amount has been deposited mistakenly (during investigation). However, in the show cause notice dated 23.04.2019, these amounts deposited were not recognised neither mentioned nor was there proposal for appropriation. During the pendency of the adjudication proceedings, the appellant, in view of the SVLDR Scheme under the Finance (No.2) Act, 2019, read with rules thereunder, applied for settlement of their tax dues under the show cause notice by filing Form SVLDRS-I on 29.11.2019, mentioning that they have already deposited Rs.29,36,382/-. However, pursuant to hearing, Form SVLDRS-III was issued by the Department with the remark, “ the claim of pre-deposit of Rs.29,36,382.00 could not be verified as per records available and the amount has also not been mentioned in the show cause notice for appropriation. Therefore, the amount of Rs.29,36,382.00 cannot be treated as a pre-deposit against the show cause notice for which the SVLDRS-I application has been filed. Accordingly, it is requested to deposit the amount of Rs.2,67,29,046.50 through the link available on SVLDRS-3.” Accordingly, the appellant was directed to deposit the full amount of Rs.2,67,29,046.50 without getting credit of the amount of pre-deposit made during investigation for the reasons wholly attributable to the Department and/or for failure on the part of the Department to verify the tax already paid.
CESTAT find that there is no dispute as regards payment of this amount in question. Further, it is evident from the record that this amount remained unadjusted due to fault of the Department as well as the Designated Committee under the Sabka Vishwas Scheme, who have refused the adjustment of the amount of pre-deposit, stating that the amount is not verifiable. In these circumstances, I hold that this amount remained as the Revenue deposit with the Department and was never adjusted. Further, this amount is not a part of the admitted tax. In these circumstances, I allow this appeal and set aside the impugned order. The Adjudicating Authority is directed to grant refund of Rs.29,36,382/- within a period of 30 days from the date of receipt of this order along with interest @12% per annum from end of three months from the date of filing of the application for refund, till the date of grant of refund.
FULL TEXT OF THE CESTAT DELHI ORDER
The appellant is in appeal against refusal of refund of the amount of Rs.29,36,382/-.
2. The brief facts are that the appellant is engaged in running Works Contract Services and services of construction of residential complexes during the period 2013-14 till 2017-2018 (June 2017). Show cause notice dated 23.04.2019 was issued demanding service tax of Rs.5,34,58,093/-. During the investigation stage, the appellant had deposited vide 8 separate challans a total amount of Rs.29,36,382/-. These amounts were deposited during September and December, 2018. In the statement recorded of Shri Sunil Goel, Authorised Signatory of the appellant on 22.03.2019, he stated that this amount has been deposited mistakenly (during investigation). However, in the show cause notice dated 23.04.2019, these amounts deposited were not recognised neither mentioned nor was there proposal for appropriation. During the pendency of the adjudication proceedings, the appellant, in view of the SVLDR Scheme under the Finance (No.2) Act, 2019, read with rules thereunder, applied for settlement of their tax dues under the show cause notice by filing Form SVLDRS-I on 29.11.2019, mentioning that they have already deposited Rs.29,36,382/- . However, pursuant to hearing, Form SVLDRS-III was issued by the Department with the remark, “ the claim of pre-deposit of Rs.29,36,382.00 could not be verified as per records available and the amount has also not been mentioned in the show cause notice for appropriation. Therefore, the amount of Rs.29,36,382.00 cannot be treated as a pre-deposit against the show cause notice for which the SVLDRS-I application has been filed. Accordingly, it is requested to deposit the amount of Rs.2,67,29,046.50 through the link available on SVLDRS-3.” Accordingly, the appellant was directed to deposit the full amount of Rs.2,67,29,046.50 without getting credit of the amount of pre-deposit made during investigation for the reasons wholly attributable to the Department and/or for failure on the part of the Department to verify the tax already paid.
3. However, the appellant, as advised, in order to avail benefit of the settlement scheme, deposited the full amount without the benefit of adjustment and were issued settlement/discharge certificate for full and final settlement of the tax dues in SVLDRS-IV on 15.05.2020. Thereafter, the appellant applied for refund of the unadjusted amount of Rs.29,36,382/- on 01.07.2020. The said refund application was rejected vide order-in-original dated 01.09.2021 on the ground that the settlement under SVLDRS was done by High Level Committee headed by the Principal Commissioner and thus, the said amount of Rs.29,36,382/- cannot be treated as pre-deposit against the show cause notice in question. Further stated that under the Scheme, no proceedings covered under the Discharge Certificate can be re-opened. Further, reference was made to Section 130 (1)(b) of Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019, “which states that any amount paid under the Scheme shall not be refunded under any circumstances”. Further, Section 130(2) states that “in case of any pre-deposit or other deposit already paid, exceeds the amount payable as indicated in the statement of the designated committee, the difference shall not be refunded.” Being aggrieved, the appellant preferred appeal before the Commissioner (Appeals), who vide order-in-appeal upheld the rejection of the refund agreeing with the findings of the Asstt. Commissioner.
4. Being aggrieved, the appellant is before this Tribunal.
5. Ld. Counsel states the Court below has admitted that the appellant have deposited the amount of Rs.29,36,382/-. Further, admittedly, this amount was not considered for adjustment as the Designated Committed under the SVLDR Scheme stated that they are unable to verify this amount, which is evident from the remarks in SVLDRS Form-III. Thus, the Department cannot be permitted to take advantage of its own wrong. Further, refusal of this amount in question is hit by Article 265 of the Constitution of India, as no amount can be collected and/or retained by the Government or the Tax Authorities, which is not authorised by the law. Accordingly, he prays for allowing the appeal with consequential benefits.
6. Ld. Authorised Representative for the respondent/Revenue relies on the impugned order.
7. Having considered the rival contentions, I find that there is no dispute as regards payment of this amount in question. Further, it is evident from the record that this amount remained unadjusted due to fault of the Department as well as the Designated Committee under the Sabka Vishwas Scheme, who have refused the adjustment of the amount of pre-deposit, stating that the amount is not verifiable. In these circumstances, I hold that this amount remained as the Revenue deposit with the Department and was never adjusted. Further, this amount is not a part of the admitted tax. In these circumstances, I allow this appeal and set aside the impugned order. The Adjudicating Authority is directed to grant refund of Rs.29,36,382/- within a period of 30 days from the date of receipt of this order along with interest @12% per annum from end of three months from the date of filing of the application for refund, till the date of grant of refund.
8. Appeal allowed.
(Dictated and pronounced in open Court).
