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2023-TIOL-140-HC-MUM-ST
National Centre For The Performing Arts Vs UoI
ST - SVLDRS, 2019 - Petitioner is aggrieved by issuance of Form SVLDRS-3 dated 19th February 2020 by the Designated Committee making a demand of Rs. 37,67,015/- on the ground that the tax dues comprise of only duty amount; and by deducting the deduction of Rs. 40,28,670/- paid by the Petitioner under Accounting Code 00441481 i.e. 'Other Receipts (Interest)' - Petitioner is further aggrieved that despite the language in Section 124(2) of the Finance Act, 2019, which refers to "any amount paid" as deposit or pre-deposit to be deducted when issuing the statement indicating the amount payable by the declarant, the Designated Committee has gone ahead and not given credit for the amount of interest already paid by Petitioner prior to the issuance of Show Cause Notice by the department.
Held: In our view, any amount paid in Section 124(2) does not distinguish between amount paid under different heads - It envisages two kinds of deductions - any pre-deposit made at any stage of the appellate proceedings under the indirect tax enactment or any deposit made during enquiry, investigation or audit - Both these species need to be deducted while finalizing the computation - The provision only talks of an amount irrespective of whether it has been paid as tax or interest or penalty - In fact, the Respondents in their affidavit have nowhere disputed this - The SVLDR Scheme is a beneficial legislation and as noted above, not only for liquidation of legacy disputes for the benefit of the tax payers but also for recovery of unpaid taxes: it is a scheme for amicable resolution of disputes and in the interest of revenue - The Statement of Objects and Reasons clearly provide that the declarant would be entitled to benefits in the form of waiver of interest, fine, penalty and also immunity from prosecution - Keeping in mind these objectives, failure to adjust interest paid by the Petitioner, in the view of the Bench, appears to be hyper-technical and should not come in the way of implementation of schemes of this nature - Once the provision speaks of "any amount paid" without distinguishing between the heads of tax or between tax, interest or penalty, in the view of the Bench, the provision mandates the deduction of the amounts deposited prior to issuance of the show cause notice - The interpretation of the provisions should be to carry forward the object rather than to frustrate the same giving rise to more litigation - Had the Designated Committee taken a pragmatic view, more so, in the light of the law settled by at least three High Courts, this litigation was clearly avoidable - Bench has no hesitation in holding that the Designated Committee ought to have given due credit of the sum of Rs. 40,28,670/- as interest deposited by Petitioner was prior to the issuance of the Show Cause Notice - Form 3 issued by the Designated Committee cannot be sustained and is set aside - Designated Committee is directed to consider the declaration in SVLDRS-1 dated 27th December 2019 filed by the Petitioner in the light of the aforesaid discussion and to issue a fresh SVLDRS-3, within a period of six weeks, after giving an opportunity of hearing to the Petitioner - Petition allowed: High Court [para 27, 28, 30, 31, 33]
- Petition allowed: BOMBAY HIGH COURT
2023-TIOL-138-HC-MUM-CUS
CC Vs Galaxy Surfactants Ltd
Cus - Against the order of the CESTAT dated 24th July 2006, the Commissioner of Customs (EP) has preferred these Appeals – Following are the questions of law on which the appeal has been admitted viz. whether Tribunal is right in setting aside the Order in Original passed by the Commissioner of Customs for violating of condition of exemption notification and advance licence; whether the interpretation given by the Tribunal to the word "actual user" in the policy is justified. Held: There is no dispute that the Respondent has discharged the export obligation - Lauryl alcohol which has been imported under the advance licences containing actual user condition has been used at the M- 3 Tarapur Taloja plant of Respondent and not at its V-23 plant at Taloja - The contention for disentitling the Respondent for the "benefit of duty exemption is that the actual user condition has not "been met "by the Respondent - It has been argued on behalf of Appellant (Revenue) that the exempt materials have been diverted to M-3 unit at Tarapur, instead of V-23 Taloja unit and that, therefore, there has been a transfer resulting in breach of condition (vii) - It is not in dispute that the V-23 Taloja unit as well as the M-3 Tarapur unit are units of the Respondent - The Respondent is a 'person' as defined in paragraph 3.37 of the EXIM Policy where a company is also included in the said definition - 'Actual User (Industrial)' is defined to mean a person who utilizes the imported goods for manufacturing in his own industrial unit or manufacturing for his own use in another unit including a jobbing unit - The Respondent is the person and V-23 and M-3 are the units are of the same person viz. the Respondent and if the imported duty free goods are utilized for his own use in another unit (viz. M-3 at Tarapur unit) then going by the definition of 'Actual User (Industrial)' in paragraph 3.5 of the EXIM Policy, the question of transfer to any other person would not arise - Therefore, the question of breach of paragraph 7.4(ii) of the EXIM Policy which clearly provides that Advance Licences and / or materials imported thereunder shall not be transferable even after completion of the export obligation would not arise - Also, the question of breach of paragraph 7.16 of the EXIM Policy which pertains to actual user condition and provides that the licences granted under this scheme are subject to actual user condition till endorsement of transferable by the Licencing Authority would not arise, as there has been no transfer in the instant case as the materials have been received by one of the Units of the Respondent - Questions as raised are answered in favour of the Respondent and against the Appellant Revenue: High Court [para 18, 21, 22, 26]
- Appeals disposed of: BOMBAY HIGH COURT |
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