2021-TIOL-410-HC-P&H-ST

Loyalty Solutions And Research Pvt Ltd Vs UoI

ST - Respondent on the same set of allegations though for different periods issued four show cause notices raising demand of service tax which came to be decided by common Order-in-Original - respondent dropped partial demand, however confirmed demand of remaining amount of tax along with interest and further imposed penalty - respondent issued 5 th Show Cause Notice for the period October, 2016 to June, 2017 - petitioner preferred single appeal before the CESTAT against common Order-in-Original dated 18.04.2018 - During the pendency of appeal before the Tribunal, the petitioner deposited entire amount of service tax as confirmed by aforesaid Order-in-Original - The respondent filed cross appeal against same Order-in-Original whereby partial demand was confirmed - petitioner filed two applications under Amnesty Scheme seeking waiver of interest and penalty because 100% amount of tax stood already paid. One application dated 24.12.2019 was filed with respect to appeal pending before Tribunal and another dated 24.12.2019 for 5 th pending Show Cause Notice dated 06.03.2019 - Designated Committee constituted under Amnesty Scheme vide impugned order dated 24.02.2020 rejected declaration filed with respect to appeal pending before Tribunal on the ground that petitioner has filed single declaration with respect to four show cause notices whereas petitioner in terms of Rule 3 (2) of SVLDR Rules, 2019 was bound to file separate application for each show cause notice - However, the respondent accepted declaration with respect to 5 th show cause notice - Aggrieved with the order of the Designated Committee, Writpetitionfiled.

Held:

+ Issue involved is no longer res integra - Coordinate Bench of this Court in CWP no. 10804 of 2020 has dealt with the question in hand [wherein four SCNs were adjudicated and a consolidated order was passed by Additional Commissioner and likewise one consolidated order was passed by Appellate authority in the combined appeal leading to one appeal being filed before CESTAT] and vide order dated 25.09.2020 2020-TIOL-1663-HC-P&H-CX has held that the petitioner'sapplication ought not to have been rejected only on the ground that one declaration, and not four, was filed on 30th December 2019 - Respondent couldnot differentiate facts of the present case from the aforesaidjudgment, however, pleaded that the Department is in the process of filing SLPbefore the Supreme Court - Bench is of the view that mere intention to file SLP or filing of SLP is no ground to keep the matter pending or form any opinion different from opinion of coordinate bench of same strength and, therefore, respectfully following the aforesaid judgment, Bench finds it appropriate to allow present petition. [para 7]

+ Bench also notices that the petitioners in view of Rule 6A of the CESTAT (Procedure) Rules, 1982 filed single appeal before the Tribunal against the common order passed by Adjudicating Authority in respect of different show cause notices involved herein -From the reading of Rule 6A, it is evident that with respect of one order, single appeal irrespective of number of show cause notices may be filed - The petitioners undisputedly had filed single appeal with respect to more than one show cause notices - Filing of appeal before Tribunal is a substantial right whereas filing of declaration under Amnesty Scheme is mere procedural formality as declaration is maintainable if eligibility conditions are complied with which are enumerated under Section 123 to 125 of the Finance Act, 2019 - Indubitably, the petitioners are complying with all the eligibility conditions, therefore, the Petitioners cannot be denied the relief claimed. [para 8]

+ The scheme in question is not a piece of taxation legislation, instead, it is a piece of beneficial legislation for Union as well dealers/assessee. The Government is getting revenue without litigation and assessee is getting immunity from partial tax liability as well as interest and penalty, thus there is win-win situation for both sides. The Amnesty Scheme was launched to minimize litigation and respondent seems to unnecessarily dragging the matter. The hyper technical approach of the officials/authorities is contrary to the intent and purport of the beneficial scheme and the mandate of the Parliament. TheFinance Act has excluded various categories of persons from the scheme and it is undisputed that petitioners fall within category of eligible persons. It is settled law even under taxation that if a person is eligible to one or another benefit, he should not be denied said benefit on procedural or technical grounds. The requirement of strict compliance of conditions is necessary to ascertain eligibility, however procedural formalities need not to be strictly complied with. Filing of one or more declarations has been prescribed by Rules whereas conditions of eligibility have been prescribed by Finance Act, 2019. The filing of separate declaration is not even condition whereas it is sort of procedure. Once an assessee complies with conditions prescribed by Finance Act, 2019 and no prejudice is caused to the revenue by filing of single declaration instead of multiple, we do not find any reason to deny benefit on the ground of non-compliance of any condition which is purely procedural in nature. [para 9]

+ In the present case, no prejudice has been o

r would be caused to the Revenue and if at all, severe prejudice would be caused to the petitioner in case his prayer is not accepted, in the light of the object of the Amnesty Scheme by permitting adoption of hyper technical approach. [para 9]

+ Present petitions deserve to beallowed and accordingly allowed. The impugned orders dated 24.02.2020and order dated 15.01.2020are hereby quashed and the respondents are directed to issue discharge certificate subject to compliance of other conditions by the petitioners within four weeks: High Court [para 9]

Petitions allowed : PUNJAB AND HARYANA HIGH COURT

2021-TIOL-409-HC-DEL-NDPS

Rafiq Vs State of Govt of NCT of Delhi

NDPS - Bail application filed under Section 439 Cr.P.C . read with Section 482 Cr.P.C . on behalf of the petitioner for grant of regular bail in case FIR registered under Section 20/25 of the NDPS Act - As per the case of the prosecution on interrogation of the petitioner and his co-accused they disclosed that they used to bring the contraband (charas) by hiding in vegetables, which they carry in their vehicle – It is submitted that the petitioner is 19 years old and 555 Gms . of Charas which is less than the commercial quantity is alleged to have been recovered, therefore, rigors of Section 37 of the NDPS Act would not be applicable - Petitioner further argues that the Trial Court has erroneously clubbed together the recoveries effected from the petitioner and his co-accused and came to the conclusion that the recovered quantity is more than commercial quantity and thus there was a bar of Section 37 of the NDPS Act.

Held: In the instant case, GD entry No. 0011A was recorded on the basis of the secret information received - So, at the stage of bail, factual matrix of the case cannot be looked into and the same would be seen during the course of trial - The petitioner was arrested along with his co-accused, who is involved in two other cases of NDPS Act and no doubt he was carrying only 555 Gms. of Charas, which according to the counsel for the petitioner is less than the commercial quantity but his co-accused was carrying 955 grams of contraband, so at this stage, it would not be proper to consider the alleged recovery to be an individual recovery as both of them were travelling in the same vehicle - Co-accused is a habitual offender and he knows the trick of the trade and the factum of conspiracy can only be looked into at the time when the evidence is led - Therefore, in the facts and circumstances of this case and the fact that the alleged recovered quantity from both the accused being more than 1 Kg., rigors of Section 37 applies - No ground for bail is made out - The application is, therefore, dismissed: High Court [para 11, 12]

- Application dismissed: DELHI HIGH COURT