Case Law Details
Bijal Dhimankumar Vyas Vs Union of India (Gujarat High Court)
The Designated committee (DC) did not consider the amount of pre-deposit made during investigation. The High Court held that the CESTAT had granted stay to the Petitioner on the basis of payment of pre-deposit. Thus, this deposit is not in dispute. The rejection was set aside. The High Court directed the Department to look into the above position and more particularly, the order passed by the Tribunal. It may assist similarly placed litigants.
FULL TEXT OF THE JUDGMENT/ORDER OF GUJARAT HIGH COURT
1. By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs:
“a) This Hon’ble Court be pleased to issue a Writ of Certiorari or a writ in the nature of Certiorari or any other writ, order or direction under Article 226 of the Constitution of India calling for the records pertaining to the Petitioner’s case and after going into the validity and legality of the provisions set aside and quash the SVLDRS FORM 3 dated 04.02.2020 issued by Respondent No.3.(Exhibit “A”).
b) This Hon’ble Court be pleased to issue a Writ of Certiorari or a writ in the nature of Certiorari or any other writ, order or direction under Article 226 of the Constitution of India calling for the records pertaining to the Petitioner’s case and after going into the validity and legality of the provisions to issue Fresh FORM SVLDRS 3 considering the deposit made by the Petitioner;
c) This Hon’ble Court be pleased to issue a Writ of Certiorari or a writ in the nature of Certiorari or any other writ, order or direction under Article 226 of the Constitution of India calling for the records pertaining to the Petitioner’s case and after going into the validity and legality of the provisions stay the operation of SVLDRS FORM 3 vide impugned order dated 04.02.2020 (Exhibit “A”)
d) This Hon’ble Court be pleased to issue a Writ of Certiorari or a writ in the nature of Certiorari or any other writ, order or direction under Article 226 of the Constitution of India calling for the records pertaining to the Petitioner’s case and after going into the validity and legality of the provisions direct the respondents to not initiate any coercive action seeking recovery of alleged dues against the petitioner during the pendency of the present petition;
e) for ad-interim reliefs in terms of prayer (a), (b),(c) and d) above;
f) for costs of this Petition; and
g) For such and other reliefs as the nature and circumstances of the case may require.”
2. It appears from the materials on record that the writ applicant, a Proprietary concern is engaged in the business of providing cleaning services to its customers. It is not in dispute that the writ applicant is registered as a service provider under the provisions of the Finance Act.
3. On 18.12.2007, a search operation was carried out at the business premises of the writ applicant. The search ultimately led to issue of a show cause notice on 06.03.2009 for the period between 16.06.2005 and 31.03.2008. In the show cause notice, the writ applicant was asked to pay an amount of Rs.93,87,029/-towards the service tax with interest and penalty.
4. The adjudication proceedings ultimately culminated in an Order in Original passed by the Commissioner on 25.01.2010 confirming the demand to the tune of Rs.83,43,470/-.
5. The order passed by the Commissioner came to be challenged before the Tribunal. The Appeal as on date is pending before the Tribunal.
6. In the meantime, the Central Government came out with a scheme by name Sabka Vishwas (Legacy Dispute) Scheme, 2019.
7. The writ applicant thought fit to avail the benefit of the above Scheme.
8. The writ applicant applied vide the Form No. SVLDRS 1 declaring his liability to the tune of Rs.83,43,470/-. As a condition precedent to avail the benefit, the writ applicant had to make a pre-deposit of 50% of his liability. It is the case of the writ applicant that an amount of Rs.49,33,521/- i.e. 50% of his liability was already deposited with the Tribunal. The Tribunal has recorded this fact in its order dated 14.03.2011. The order reads thus:
“CORAM: MRS. ARCHANA WADHWA, MEMBER
(JUDICIAL)
Mr. B.S.V. MURTHY, MEMBER (TECHNICAL)
Date of Hearing 14.03.11
Date of Decision: 14.03.11
ORDER NO. 5/3/1/ WZB/AHD/2011
Per: Archana Wadhwa:
Out of the total confirmed duty of Rs.83,43,470/-, appellant has already deposited an amount of Rs 49,33,521/- along with interest of Rs.3,93,178/-. According to the appellant the service tax stands confirmed against them without extending the benefit of small scale exemption and without allowing the deduction on account of the material used by them in providing the services. If that be done, the service tax amount would come down to around Rs.49 lakhs which already stands deposited by them.
2. In as much as the appellants have deposited the above amount along with interest, we dispense with the condition of pre-deposit of balance amount of duty and entire amount of penalty upon the appellant. Stay petition is allowed in above manner.
(Dictated & Pronounced in Court)
(B.S.V. Murthy)
Member (Technical)
(Archana Wadhwa)
Member (Judicial)”
9. The writ applicant is here before this Court redressing the grievance that despite the fact that 50% amount towards the pre-deposit had already been made, the Committee constituted for the purpose of looking into the claim under the Scheme while issuing the SVLDRS 3 granted deduction of Rs. 20,11,712 /- only and the balance amount of Rs. 21,60,023 /- was shown as payable which appears to be on the count that the writ applicant has not made payment of such amount.
10 We have heard Mr. Bharat Raichandani, the learned counsel appearing for the writ applicant and Mr. Priyank Lodha, the learned senior standing counsel appearing for the respondents.
11. Mr. Lodha invited attention of this Court to the affidavit-in-reply filed on behalf of the respondents so as to make his stance clear. In reply, more particularly, in para 10, the following has been stated:
“10. It is submitted that the petitioner had declared liability of Rs.83,43,470/- claimed to have deposited Rs.49,33,521/-whereas the designated committee had found that Commissioner, in OIO No.STC/25/COMMR/AHD/2009 dated 25.01.2010 had considered the payment already Rs.2,70,11,712/- i.e. Rs.19,64,721/- and CENVAT credit amount of Rs.46,991/-, and confirmed the balance amount of service tax to Rs.63,31,758/-. Accordingly, SVLDRS-2 was issued on 21.01.2020 showing estimate amount payable as Rs.21,60,023/-. Vide letter dated 18.02.2020 the petitioner had produced copy of Order No.S/1622/W2B/AHD/2012 dated 08.08.2012 of CESTAT, Ahmedabad. However, on perusal of the said order it revealed that it pertained to Appeal No.650/2011 filed against OIA No.214/2011 (STC)/K. Anpazhakan/ Comm(A)/ Ahd dated 16.08.2011 for a demand of service tax during the period 01.04.2009 to 31.03.2010. Accordingly, the designated committee had not considered the claim of the petitioner making pre-deposit of Rs.49,33,521/- and issued SVLDRS-3 on 04.02.2020, determining the tax liability of Rs.21,60,023/-. Thus, the designated committee has acted within the frame work of the scheme.”
12. We fail to understand the aforesaid stance of the respondents, more particularly, having regard to the fact that when the Tribunal itself has recorded in its order dated 14.03.2011 referred to above that out of the total confirmed duty of Rs.83,43,470/-, the appellant i.e. the writ applicant herein has already deposited an amount of Rs.49,33,521/- along with interest of Rs.3,93,178/-, then what further objection the Committee could have had for the purpose of processing the application filed by the writ applicant.
13. We are of the view that the Committee should once again look into the aforesaid aspect, more particularly, the order passed by the Tribunal itself and thereafter, proceed further in accordance with law.
14. Let the aforesaid exercise be undertaken within 8 weeks from the date of receipt of writ of this order.
15. We hope and trust that the writ applicant is not unnecessarily dragged into second round of litigation.
16. With the aforesaid, this writ application stands disposed of. Direct service is permitted.
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