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2021-TIOL-461-HC-MUM-ST
Rs Hr Team Solutions Pvt Ltd Vs UoI
ST - SVLDRS, 2019 - By a written communication dated 12.02.2020 respondent No.4 rejected the declaration of the petitioners dated 27.11.2019 on the ground that quantification of service tax liability was not made final by 30.06.2019 - On similar ground, the second declaration dated 10.01.2020 was also rejected by respondent No.4 on 08.06.2020 - Petitions filed.
Held: Question as to whether eligibility of a declarant for making a declaration in terms of the scheme under the category of 'investigation, enquiry or audit' or maintainability of such a declaration on the ground that the amount of tax dues was not quantified on or before 30.06.2019 is no longer res integra - It is evident from the decisions in Thought Blurb - 2020-TIOL-1813-HC-MUM-ST , G.R.Palle Electricals - 2020-TIOL-2031-HC-MUM-ST & Saksham Facility P Ltd. - 2020-TIOL-2108-HC-MUM-ST that all that would be required for being eligible under the above category is a written communication which will include a letter intimating duty demand or duty liability admitted by the person concerned during inquiry, investigation or audit - For eligibility under the scheme, the quantification need not be on completion of investigation by issuing show-cause notice or the amount that may be determined upon adjudication - Insofar as the present case is concerned, there is no dispute that petitioner No.2 in his statement made before the Directorate General of GST Intelligence on 30.03.2018 had admitted service tax liability to the extent of Rs. 6 crore approximately - This was accepted by the respondents and in the subsequent communications issued to the petitioners on 31.08.2018 as well as on 16.05.2019 respondents had relied upon and referred to the admission of petitioner No.2 to the extent of service tax liability of Rs. 6 crore - Bench finds that after rejection of the two declarations of the petitioners, respondent No.6 has issued show cause cum demand notice dated 30.12.2020 alleging amongst others that petitioners have defaulted in payment of service tax to the extent of Rs. 6,13,91,021.00 for the period from 2013-14 to 2017-18 ( upto June, 2017) which is the exact figure of service tax liability disclosed by the petitioners in the second declaration dated 10.01.2020 - Though petitioners had made a mistake in not disclosing this figure of Rs. 6,13,91,021.00 in the first declaration, the situation was rectified by filing the second declaration before rejection of the first declaration disclosing the aforesaid figure - Bench finds that the second declaration was filed on 10.01.2020 whereas the first declaration was rejected on 12.02.2020 - In such circumstances, Bench is of the view that the quantum of service tax liability of the petitioner was the amount of service tax liability of the petitioners quantified in terms of the scheme on admission of the petitioners prior to the cut-off date of 30.06.2019 i.e. Rs. 6 crores approximately which roughly corresponds to the declared figure of Rs. 6,13,91,021.00 in the second declaration - In such circumstances, rejection of the second declaration of the petitioners on the ground of ineligibility is not justified - Bench has in the case of Sabareesh Pallikere - 2021-TIOL-355-HC-MUM-ST held that - " The fact that there could be discrepancy in the figure of tax dues admitted by the person concerned prior to 30.06.2019 and subsequently quantified by the departmental authorities would not be material to determine eligibility in terms of the scheme under the category of inquiry, investigation or audit. What is relevant is admission of tax dues or duty liability by the declarant before the cut-off date. Of course the figure or quantum admitted must have some resemblance to the actual dues. In our view, petitioner had fulfilled the said requirement and therefore he was eligible to make the declaration in terms of the scheme under the aforesaid category ." - Also in the case of Thought Blurb - 2020-TIOL-1813-HCMUM-ST , Bench has held that when there is a provision for granting personal hearing in a case where the declarant disputes the estimated amount, it would be in complete defiance of logic and contrary to the very object of the scheme to reject a declaration on the ground of being ineligible without giving a chance to the declarant to explain as to why its declaration should be accepted and relief under the scheme be extended to him - Order dated 08.06.2020 is set aside and the matter is remanded back to the respondents (designated authority) to consider the declaration of the petitioner dated 10.01.2020 afresh as a valid declaration in terms of the scheme under the category of investigation, inquiry and audit and thereafter grant the consequential relief(s) to the petitioner - Respondent No. 1 is directed to provide an opportunity of hearing to the petitioner and thereafter pass a speaking order - Above exercise shall be carried out within a period of eight weeks - Petition allowed: High Court [para 16, 20 to 23, 26, 28]
- Petition allowed: BOMBAY HIGH COURT
2021-TIOL-460-HC-MUM-CUS
Micromax Informatics Ltd Vs UoI
Cus - Petitioner had imported mobile handsets including cellular phones falling under Customs Tariff Heading (CTH) 8517 - Issue was whether the petitioner could claim refund of the excess duty paid without either challenging the so called assessment or without reassessment of the bill of entries - Bench had observed that the significant statutory amendments in sections 17 and 27 of the Customs Act by virtue of the Finance Act, 2011 were noticed, analyzed and discussed by Delhi High Court and Single Judge of Madras High Court in case of Micromax Informatics Limited - 2016-TIOL-978-HC-DEL-CUS ; that the Court is in respectful agreement with such analysis, the view expressed by the Courts and the ratio laid down therein; that under the circumstances, the sole objection of the Department (that without having assessment orders set aside, no refund claim would be maintainable) contained in the impugned orders for rejection of the petitioner's refund claims is overruled - Accordingly, the refund applications are revived and the Competent Authority was directed to process the same and pass fresh order - consequently, complying with the judgment and order of this Court, the competent authority sanctioned refund of Rs. 1,20,52,50,520.00 under section 27(1)(a) of the Customs Act, 1962 - UOI had assailed the judgment of the Delhi High Court and the Supreme Court by its decision dated 18.09.2019 set aside the judgments of the Delhi High Court and Madras High Court and held that a self-assessment would also be an order of assessment; that the provision under section 27 of the Customs Act, 1962 cannot be invoked in the absence of amendment or modification in the bill of entry, on the basis of which self-assessment is made; that order of self- assessment is required to be followed and unless modified, the claim for refund cannot be admitted under section 27 - Commissioner of Customs (Import), Mumbai now contends that basis of this Court's decision is no longer valid and, therefore, the refund granted to the petitioner is liable to be returned back to the customs department; that show cause notice dated 09.01.2020 has been issued and an order-in-original dated 16.02.2021 has been passed confirming the demand.
Held : Question for consideration is whether the decision of the Supreme Court dated 18.09.2019 can be applied retrospectively to those cases where refund had already been granted? - Bench is of the view that issue raised in this writ petition would require further examination - To issue notice returnable after six weeks - In the meanwhile, there shall be stay of the impugned demand cum show cause notice dated 09.01.2020 and the consequential order in original dated 16.02.2021 - Matter to be listed on 9th April, 2021: High Court [para 10, 11, 14]
- Interim stay ordered: BOMBAY HIGH COURT
2021-TIOL-106-CESTAT-MUM
Lift Systems India Pvt Ltd Vs CCE
CX - Appellants have filed declarations under SVLDRS, 2019 and after payment of necessary dues they were issued with SVLDRS discharge Certificate [SVLDRS-04] u/s 127 of the FA, 2019 and which is on record - Consequently, the appeals filed before the CESTAT are disposed of: CESTAT
- Appeals disposed of: MUMBAI CESTAT |
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