Bombay High Court
Jsw Steel Limited vs Union Of Inida And 3 Ors on 21 October, 2021
Bench: Makarand Subhash Karnik
36.wp.970-20 & ors.doc
PMB/DDR
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.970 OF 2020
WITH
WRIT PETITION NO.186 OF 2021
WITH
INTERIM APPLICATION (L) NO.6273 OF 2021
IN
WRIT PETITION NO.186 OF 2021
JSW Steel Limited .. Petitioner
Vs.
Union of India and ors. .. Respondents
------------
Mr. Naresh Thacker a/w Mr. Parth Parikh i/b. Economic Laws
Practice for the petitioner.
Mr. J.B. Mishra a/w Mr. Ashutosh Mishra for respondents.
------------
CORAM : DIPANKAR DATTA, CJ &
M. S. KARNIK, J.
HEARD ON : OCTOBER 7, 2021
JUDGMENT ON : OCTOBER 21, 2021
JUDGMENT : (PER M.S. KARNIK, J.) :
1. These petitions raise common issues and hence are
disposed of by a common judgment. The parties also
consent to this course of action. In Writ Petition No.970 of
2020, the petitioner filed a declaration under the Sabka
Vishwas (Legacy Dispute Resolution) Scheme, 2019
36.wp.970-20 & ors.doc
(hereinafter referred to as 'the Scheme' for short) under
ARN No.LD2812190001777 dated December 28, 2019 under
the category of 'Investigation/Enquiry/Audit', sub category
'Audit' declaring tax dues of Rs.75,64,008/-. In Writ Petition
No.186 of 2021, the petitioner filed a declaration under the
Scheme under ARN No.LD2812190001665 dated
December 28, 2019 under the category of
'Investigation/Enquiry/Audit', sub category 'Audit' declaring
tax dues of Rs.2,41,59,708/-. The declarations are rejected
by the letters dated May 12, 2020 (hereinafter referred
to as 'the impugned letters' for short). For convenience
we have referred to the facts in Writ Petition No.970 of
2020.
2. The jurisdiction of this Court is invoked under Article
226 of the Constitution of India challenging the validity and
legality of the impugned letters, rejecting the application
made by the petitioner under the Scheme for settlement of
the amount of excise duty payable.
3. The petitioner is a company registered under the
Companies Act, 1956 duly allotted the Central Excise
36.wp.970-20 & ors.doc
Registration as well as the GST registration. The petitioner
is engaged in manufacture and supply of steel. The office of
respondent No.4 (Commissioner, CGST and CX) conducted
EA-2000 audit on the records of the petitioner for the period
April 2015 to June 2017. During the course of scrutiny on
records of the petitioner, Circle X, Group I, GST Audit,
Raigad, sought following details from the petitioner vide e-
mail dated April 4, 2018 :-
i) Invoices in respect of which CENVAT Credit was
availed and subsequently reversed on account of non-
payment of consideration to the vendors within 90
days from the date of the invoices, as per Rule 4(7) of
the CENVAT Credit Rules, 2004 (hereinafter referred to
as 'Credit Rules').
ii) Invoices in respect of CENVAT Credit re-availed
once the payment was made by the Petitioner to the
vendors, as per the provisions under Rule 4(7) of the
Credit Rules."
4. The petitioner on the same day i.e. April 4, 2018
provided the necessary details to the office of respondent
No.4 through an e-mail correspondence. Based on the
verification of the details submitted by the petitioner, the
office of respondent No.4 vide letter dated September 4,
36.wp.970-20 & ors.doc
2018 observed that the credit availed by the petitioner in
respect of many invoices was inadmissible. The office of
respondent No.4 observed that the petitioner had re-availed
CENVAT Credit under Rule 4(7) of the Credit Rules in
respect of certain invoices for which the credit was not
reversed in the first place. The petitioner pleads that the
office of respondent No.4 quantified the amount of such
ineligible CENVAT Credit availed by the petitioner for the
period April 2015 to June 2017 as Rs.75,64,008/-
(hereinafter referred to as 'the said amount' for short) and
communicated the said quantification to the petitioner
through e-mail on October 31, 2018. The petitioner then
states that the office of respondent No.4 issued audit report
dated August 29, 2019 whereby various observations with
respect to the audit of the records of the petitioner are
made. It is the petitioner's case that the letter dated August
29, 2019 specifically included the observation with respect
to wrongful re-availment of credit which was not reversed
earlier and adopted the same quantification of the said
amount which was communicated by the office of
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respondent No.4 to the petitioner vide e-mail dated October
31, 2018. The petitioner then made an application in Form
SVDRS-I of the Scheme before the respondent No.3 in
relation to the said amount quantified as duty payable by
the petitioner during the course of audit and communicated
to the petitioner vide e-mail dated October 31, 2018,
pursuant to e-mail dated April 4, 2018 and letter dated
September 4, 2018 issued by the office of respondent No.4.
5. Respondent No.3 was of the view that the said amount
was not quantified prior to June 30, 2019 and therefore, the
respondent No.3 in accordance with Section 127 of the
Finance Act, 2019 read with Clause 6 of the Scheme issued
Form SVLDRS-2 dated January 14, 2020 stating that the
declaration filed by the petitioner appears ineligible. An
opportunity of personal hearing was granted to the
petitioner on January 21, 2020. The 'impugned letter' dated
May 12, 2020 then came to be issued which is the subject
matter of challenge in the present petition.
6. The petitioner vide communication dated May 21,
2020 addressed to respondent No.3 highlighted the errors
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in the rejection letter which were apparent on the face of
record and requested for the reconsideration of the
petitioner's application. The respondent No.4 proceeded to
issue Show Cause Notice dated June 24, 2020 and
demanded a payment of duty amount of Rs.75,64,008/-.
Again by a letter dated July 21, 2020, the petitioner
requested the respondent No.3 to decide the petitioner's
representation for reconsideration of the application. In the
absence of any response to the said letters for
reconsideration, the petitioner is constrained to file the
present petitions.
SUBMISSION OF LEARNED COUNSEL FOR THE
PETITIONER
7. Learned counsel for the petitioner invited our attention
to the relevant provisions of the Scheme and the Sabka
Vishwas (Legacy Dispute Resolution) Scheme Rules, 2019
(hereinafter referred to as "the said Rules" for short). Our
attention is also invited to the circular dated August 27,
2019 to submit that the Scheme is a bold endeavour to
unload the baggage relating to the legacy taxes viz. Central
36.wp.970-20 & ors.doc
Excise and Service Tax that have been subsumed under GST
and allow business to make a new beginning, and focus on
GST. Our attention is invited to the salient features of 'the
Scheme' which are in the nature of instructions by way of
circular to familiarize the concerned officials and staff with
the provisions of the Scheme and actively ensure its smooth
implementation. According to the learned counsel, the
clarification issued under the circular dated August 27, 2019
is binding. It is urged that the impugned letter is in gross
violation of Section 123(c) read with Section 121(r) of the
Finance Act, 2019. Learned counsel was at pains to point
out that the rejection order has been passed on a factually
incorrect premise that the tax dues were not quantified as
on June 30, 2019. Relying on the circular dated August 27,
2019, learned counsel emphasized that 'quantified' means
any written communication of duty amount payable under
the indirect tax enactment and that respondent No.3 has
sought to restrict the meaning of 'written communication'
under the Finance Act, 2019 to only printed letters issued
on paper by the Authorities to the declarants and not to e-
36.wp.970-20 & ors.doc
mails. He urged that it is in the light of this factually
incorrect premise that the respondent No.4 concluded that
no evidence was placed by the petitioner to show that the
duty amount payable was quantified prior to the cut-off date
of June 30, 2019. Learned counsel submits that such a
restrictive interpretation adopted by the respondent No.3 is
vague, ambiguous and contravenes the basic fundamentals
of law and equally reflects a biased approach.
8. Learned counsel while placing reliance on the e-mail
dated April 4, 2018 and communication dated September 4,
2018 issued by the office of respondent No.4 contended
that the same tantamounts to written communication of
quantification. It is urged that as the said quantification is
prior to the cut-off date viz. June 30, 2019, the impugned
letter is unsustainable. Learned counsel also placed reliance
on various decisions rendered by the High Courts which we
have referred to in the latter part of this judgment in
support of his submissions.
SUBMISSIONS OF LEARNED COUNSEL FOR THE
RESPONDENTS
36.wp.970-20 & ors.doc
9. Our attention is invited to the affidavit-in-reply filed on
behalf of respondents. It is submitted that the quantification
was communicated to the petitioner for the first time only
on September 4, 2019, which is after the cut-off date. The
communication relied upon by the petitioner at Exhibit 'C'
dated October 31, 2018 cannot be said to be a
quantification. Learned counsel submits that e-mail dated
March 22, 2018 of Audit Commissionerate is only an excel
sheet prepared by the Audit Commissionerate on the basis
of the details submitted by the petitioner. According to him,
the communication nowhere mentions that the duty/tax
amount is quantified as payable and that, it is conclusive for
the entire period under consideration of EA-2000. In his
submission, the Audit Commissionerate called upon the
petitioner to submit additional records vide letter dated
September 4, 2018 and after receipt of information, finally
quantified the amount and intimated the same to the
petitioner vide letter dated August 29, 2019. He submits
that in fact the Audit department had called for information
from the petitioner vide letter dated September 4, 2018 and
36.wp.970-20 & ors.doc
had quantified the amount of tax only after receipt of
requisite documents from the petitioner. Hence, it is
submitted that as the demand of duty has not been
quantified/finalised by the Audit department prior to June
30, 2019, the application of the petitioner was rejected by
the impugned letter. He submits that there is nothing on
record to indicate that the amount of tax payable is
quantified or that the petitioner has admitted the tax
liability prior to the cut-off date to avail benefit of the
Scheme.
10. We have heard learned counsel for the parties. We
have perused the copy of the petition along with the
relevant exhibits, the affidavit-in-reply filed by the
respondents and the rejoinder filed on behalf of the
petitioner.
CONSIDERATION
11. The issue that arises for consideration is whether the
e-mail dated March 22, 2018, further correspondence of the
respondents vide communication dated April 4, 2018, letter
dated September 4, 2018 and the e-mail dated October 31,
36.wp.970-20 & ors.doc
2018 is an 'intimation' or 'written communication' for
quantification to be eligible for the benefit of the Scheme.
As noted hereinbefore, it is the case of the respondents that
these letters/communications are only seeking clarification
in respect of the availment of the said CENVAT Credit by the
petitioner which the petitioner is misconstruing to be
'quantification' in order to claim the benefit under the
Scheme. Factually, according to the respondents, the
quantification was finalised by the Audit Raigad
Commissionerate only vide letter dated August 29, 2019.
12. To appreciate the controversy, a reference needs to be
made to the relevant provisions of the Scheme. The
Government introduced the Scheme as a one-time measure
for liquidation of past disputes of Central Excise, Service Tax
and other tax enactments. The Scheme inter alia provides
waiver of the partial tax demand and for certain immunities
including penalty, interest or any other proceedings
including prosecution in respect of specified legal disputes
pending disposal on June 30, 2019. The Scheme provides
that all persons are entitled to make a declaration under the
36.wp.970-20 & ors.doc
Scheme except the persons specified under Section 125 of
the Finance Act, 2019.
13. Section 123 of the Finance Act, 2019 inter alia
provides that where any enquiry or investigation or audit is
pending against the declarant, the amount of duty payable
under any of the indirect tax enactment which has been
quantified on or before June 30, 2019 shall be treated as
'tax dues'. Further, Section 124 of the Finance Act, 2019
inter alia provides for the relief the declarant is entitled
under the Scheme where the tax dues are linked to an
enquiry, investigation or audit against the declarant and the
amount is quantified on or before June 30, 2019. Section
121(r) of the Finance Act, 2019 defines the term 'quantified'
as a written communication of the amount of duty payable
under the indirect tax enactment.
14. It is also material to refer to the relevant portion of
circular dated August 27, 2019 issued by the respondent
No.2 in accordance with the power entrusted thereupon
under Section 133 of the Finance Act, 2019, wherein it has
been clarified as under :-
36.wp.970-20 & ors.doc
(g) Cases under an enquiry, investigation or audit
where the duty demand has been quantified on or before
the 30th day of June 2019 are eligible under the Scheme.
Section 2(r) defines "quantified" as a written
communication of the amount of duty payable under the
indirect tax enactment. It is clarified that such written
communication will include a letter intimating duty
demand; or duty liability admitted by the person during
enquiry, investigation or audit; or audit report etc."
15. The Frequently Asked Questions (FAQs) issued on the
Scheme by the Ministry of Finance reiterates the above
clarification under circular dated August 27, 2019. The
relevant FAQ reads thus :-
"Q.3. If an enquiry or investigation or audit has started
but the tax dues have not been quantified whether the
person is eligible to opt for the Scheme?
Ans. No. If an audit, enquiry or investigation has started,
and the amount of duty/duty payable has not been
quantified on or before 30th June, 2019, the person shall
not be eligible to opt for the Scheme under the enquiry
or investigation or audit category. 'Quantified' means a
written communication of the amount of duty payable
under the indirect tax enactment [Section 121(g)]. Such
written communication will include a letter intimating
duty demand; or duty liability admitted by the person
during enquiry, investigation or audit; or audit report
36.wp.970-20 & ors.doc
etc. [Para 10(g) of Circular No.1071/4/2019-CX dated
27th August, 2019]"
16. Thus, placing reliance on the definition of the term
'quantified' under Section 121(r) of the Finance Act, 2019
and the clarification under circular dated August 27, 2019,
learned counsel for the petitioner was at pains to point out
that the communication vide e-mail dated October 31,
2018, pursuant to e-mail dated April 4, 2018 and the letter
dated September 4, 2018 issued by the office of respondent
No.4 will have to be regarded as a quantification.
17. Let us examine if in terms of the definition of the term
'quantified' there is any written communication of the
quantification. It is also necessary to examine whether the
petitioner has admitted the duty liability to avail the benefit
of the Scheme in view of the law laid down by this Court
which we shall soon refer to. At this juncture, it would be
apposite to reproduce the contents of the written
communications addressed by the respondents to the
petitioner and the Reply thereto which learned counsel for
the petitioner wants us to construe as written
communication of 'quantification' of duty liability.
36.wp.970-20 & ors.doc
(A) The communication dated April 4, 2018 addressed by
the respondents to the petitioner reads thus :-
"Dear Patil,
You are again requested to please provide the
monthwise annexure of the credit reversed and credit
retaken for non payment within 90 days as per attached
annexure.
Regards
Superintendent
Circle-X, Group-I
GST, Audit Raigad"
(B) On the very same day, vide communication dated April
4, 2018, the petitioner's response reads thus :-
"Sir,
Pl. find attached as desired by you.
Pl. confirm
Best Regards
VIJAY K Patil
Excise Deptt.
Mob.8108094920/Direct 02143277874/Extn No.7087
JSW STEEL LTD DOLVI WORKS"
Along with the said communication dated April 4,
2018, the necessary details in respect of the invoices of
which the CENVAT Credit was availed was provided by the
petitioner.
36.wp.970-20 & ors.doc
(C) By a communication dated September 4, 2018 at
Exhibit 'B', the respondents called upon the petitioner to
submit clarification in respect of the matters stated therein.
The relevant portion of the said letter reads thus :-
"2) Further it is also observed that in the ER-1 filed
by you and submitted to this office for audit, the
opening balance and closing balances of the products
manufactured and cleared by you do not match.
Please clarify on this issue also.
3) During the course of audit, inadmissible credit in
many invoices were noticed and clarification was
sought from you on the said issue. However, till date,
the clarification is not received.
4) Details clarification in r/o CENVAT credit taken
after one year period on input service invoices, is also
not submitted by you, till date, for the audit period
April 2015 to June 2017.
6) Kindly also provide Detail worksheet for
determination of Service tax liability paid under RCM
(month wise) for the financial years 2015-16, 2016-17
& 2017-18.
7) Kindly also provide Sales Reconciliation of ER-1
with Annual Report for the financial years 2015-16,
2016-17 & 2017-18.
8) Please provide the copies of ledgers with narration
as per list attached to this letter for the financial year
2015-16, 2016-17 and 2017-18 (upto June, 2017)"
36.wp.970-20 & ors.doc
18. Having gone through these communications, in our
opinion, there is nothing reflected from the communications
to indicate that duty demand was quantified. We find force
in the submission of learned counsel for the respondents
that the correspondence/mails referred to by the petitioner
prior to the cut-off date are meant only to obtain additional
required information by the audit officers during the course
of the audit and cannot be termed as 'quantification' of the
duty. There is nothing on record to indicate that
quantification of duty was done prior to June 30, 2019. We
find that the demand of the duty quantified/finalised by the
Audit Raigad was only under letter dated August 29, 2019.
19. To our mind, reading of the communications and
perusal of the invoices reveal that the respondents seem to
be justified in taking a stand that in order to ascertain the
correct quantum of ineligible credit on the issue, a list of
such credit entries were shortlisted from the excel sheet
provided by the petitioner during the visit of the audit team
to petitioner's premises on March 22, 2018. The petitioner
was requested to provide the invoices for verification. In the
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affidavit it is stated that the petitioner verbally requested
the auditors to provide the shortlisted excel sheet to enable
them to locate and search the invoices easily and produce
the same for verification. Accordingly, the said shortlisted
excel sheet namely 'credit taken after one year' was
forwarded to the petitioner by email dated March 22, 2018
as per petitioner's request. The respondents categorically
denied that the said e-mails are intimation as regards the
tax amount having been quantified finally. It is further
stated in the affidavit-in-reply that as the petitioner did not
provide any further documentary evidence, a letter dated
September 4, 2018 was issued to the petitioner for
providing necessary clarification. No doubt it is only on the
basis of the communications placed on record and the
impugned letter that its action is to be justified by the
respondents. We have referred to the affidavit-in-rely only
to ensure that the stand taken by the respondents is in
consonance with the communication and the impugned
letter and nothing more.
20. Now a reference to paragraphs 7 and 8 of the
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communication dated August 29, 2019 would be relevant.
Paragraph 7 of the said letter reads that "on reconciliation
of both the annexures, it appears that you have taken
CENVAT credit as re-credit without reversal of CENVAT
credit for an amount of Rs.75,65,008/- (Basic
Rs.73,43,696/- Ed.Cess Rs.1,46,882/- & S&H Ed. Cess
Rs.73,430/-) (Detailed as per Annexure-A). You are
therefore requested to pay the amount along with interest
and penalty." Further, in paragraph 8 the petitioner is
intimated about the inadmissibility of an amount of
Rs.4,44,64,068/- and a request is made to pay amount with
interest and penalty. We therefore find substance in the
contention of the respondents that the final quantification in
terms of the scheme was done only on August 29, 2019 and
not prior to the cut-off date viz. June 30, 2019.
21. Undoubtedly, we are in complete agreement with the
submission made by the petitioner and as clarified in the
circular dated August 27, 2019 that the entire object of the
scheme is to unload the baggage relating to the legacy
taxes viz. Central Excise and Service Tax that have been
36.wp.970-20 & ors.doc
subsumed under GST and allow business to make a new
beginning, nonetheless, only those cases relating to any
settlement of erstwhile tax dues existing as on June 30,
2019 which are in conformity with the provisions of the
scheme are entitled to avail benefit thereunder.
22. At the cost of repetition, Section 121 (r) of the Finance
Act, 2019 defines the term "quantified" as duty payable
under the indirect tax enactment. The term "quantified" is
to be read in context of the provisions of the scheme.
Though a liberal approach has to be adopted to confer the
benefit, however, the term quantification has to be given a
definite meaning. It cannot be read to mean 'a
quantification' as the petitioner wants us to infer which at
best can be said to be petitioner's ipse dixit on the basis of
the invoices submitted for scrutiny. The petitioner has not
placed on record any document to demonstrate that the
duty liability is admitted prior to the cut-off date. At the cost
of repetition, the case of the petitioner is that the
communications/emails of the respondents dated April 4,
2018, September 4, 2018 and October 31, 2018 are written
36.wp.970-20 & ors.doc
communications of quantification of the amount of duty
payable. We have already held that the said written
communications addressed by the respondents to the
petitioner cannot be read to mean as 'quantification', for the
purpose of Section 121(r) of the Finance Act. Even in
paragraph 3 of the communication dated September 4,
2018 it is stated that during the course of audit,
inadmissible credit in many invoices were noticed and
clarification was sought from the petitioner on the said issue
which clarification, according to the respondents, was never
received. On the basis of the invoices of the said CENVAT
credit produced by the petitioner alongwith the
communications, the petitioner wants us to conclude that
the quantification made by the Department on August 29,
2019 matches with the invoices submitted prior to the cut-
off date. In our opinion, merely because the calculations
made by the petitioner on the basis of the invoices matches
with the quantification made by the department on August
29, 2019 will not stand to benefit the petitioner as what is
contemplated is a quantification by the department in view
36.wp.970-20 & ors.doc
of Section 121 (r) of the Finance Act, 2019. These invoices
submitted during the course of audit without the petitioner
admitting the duty liability would not amount to
quantification within meaning of the Scheme.
23(A). We now consider the decisions relied upon by
learned counsel in support of the petitioner's case. Relying
on the decision in Seventh Plane Networks Private
Limited Vs. Union of India and ors.1, learned counsel for
the petitioner submitted that the Delhi High Court is of the
view that even if the duty liability stood admitted in an oral
statement by the petitioner before June 30, 2019,
consequence thereof is the duty liability stood quantified
prior to the cut-off date in accordance with the beneficial
circulars. Reliance is also placed on the observations made
by Their Lordships that a liberal interpretation has to be
given to the Scheme of 2019 and the circulars issued by the
Board as their intent is to unload the baggage relating to
legacy disputes under the Central Excise and Service Tax
and to allow the businesses to make a fresh beginning. We
are afraid that this decision relied upon has no application in
1 2020 (8) TMI 343-Delhi High Court
36.wp.970-20 & ors.doc
the facts of the present case. The factual matrix in Seventh
Plane Networks (supra) pertains to the duty liability being
admitted in an oral statement by the petitioner before June
30, 2019. Their Lordships in that fact situation held that
the duty liability consequently stood quantified prior to cut-
off date. The present is not a case of quantification of duty
on the basis of an oral statement made admitting the
liability.
(B) The next decision relied by learned counsel for the
petitioner is in the case of Saksham Facility Services
Private Limited Vs. Union of India and others2. This
Court while construing the definition of the word 'quantified'
relied upon a clarification issued by the Board that a written
communication would include a letter intimating duty
demand or duty liability admitted by the person during
enquiry, investigation or audit etc. Even this decision has no
application in the facts of the present case. There is nothing
on record to indicate that there is a letter intimating duty
demand or duty liability admitted by the petitioner during
enquiry, investigation or audit etc. Their Lordships in
2 2020 (12) TMI 318-Bombay High Court
36.wp.970-20 & ors.doc
Saksham Facility Services Private Limited (supra)
found that there is clear admission/acknowledgment by the
petitioner about the service tax liability. Present is not a
case where there is admission by the petitioner of his
liability prior to the cut-off date and hence, the said decision
can be of no assistance to the petitioner.
(C) Reliance is then placed on the decision of this Court in
the case of M/s. G.R. Palle Electricals Vs. Union of
India and ors.3 In paragraph 27, this Court observed that
there is acknowledgment by the petitioner of the duty
liability as well as by the department in its communication
to the petitioner. This Court therefore held that in the case
of the petitioner, the amount of duty involved had been
quantified on or before June 30, 2019. It is in the light of
the finding recorded that there has been a quantification of
the duty amount on or before June 30, 2019 that this Court
decided in favour of the petitioner. Such are not the facts in
the present case. This decision again, does not further the
petitioner's cause.
(D) Reliance is then placed on the decision of this Court in
3 2020(11) TMI 845-Bombay High Court
36.wp.970-20 & ors.doc
the case of Thought Blurb Versus Union of India and
ors.4 This was the case where the duty liability was
admitted by the petitioner. However, there was a mistake in
declaring the tax dues in the application and hence, this
Court held that in such a case because of the mistake in
declaring the tax dues for the later period on the higher
side, no benefit would accrue to the petitioner; such a
mistake could have been rectified had a hearing been given
to the petitioner. It is in these circumstances, the
Designated Committee was directed to decide the
application (declaration) afresh after giving an opportunity
of hearing to the petitioner. The decision in Thought Blurb
(supra) is in a different context altogether.
(E) Let us now consider the decision in Landmark
Associates Versus Union of India and ors.5 relied by the
learned counsel for the petitioner. After considering the
decisions of this Court in 'Thought Blurb', 'M/s. G.R.
Palle Electricals', 'Saksham Facility Services Private
Limited', Their Lordships held that the petitioner had given
4 2020(10) TMI 1135-Bombay High Court
5 2021(1) TMI 385-Bombay High Court
36.wp.970-20 & ors.doc
details of his outstanding service tax liability upto June,
2018 vide its intimation dated September 14, 2018
addressed to the respondent. Even the notices issued by the
Commissioner, GST under Section 87(b) of the Finance Act
dated December 3, 2018 also indicated that the petitioner
had failed to discharge his service tax liability due to the
Government for the relevant period. In these facts this
Court held that all that would be required for being eligible
is a written communication which will mean a written
communication of the amount of duty payable including
letter intimating duty demand or duty liability admitted by
the person concerned during enquiry, investigation or audit.
Such is not the position in the present case and therefore,
the decision in Landmark Associates (supra) will not
apply.
(F) Likewise in the decision relied upon by the petitioner in
Sabareesh Pallikere, Proprietor of M/s. Finbros
Marketing Versus Jurisdictional Designated
Committee, Thane Commissionerate, Division IV,
Range-II & ors.6, this Court in the facts of that case held
6 2021(2) TMI 515-Bombay High Court
36.wp.970-20 & ors.doc
that there has been an admission of tax dues or liability by
the declarant before the cut-off date and as the petitioner
had fulfilled the said requirement, therefore was eligible to
make the declaration in terms of the scheme under the
aforesaid category.
(G) Now, adverting to the decision in M/s. Suyog
Telematics Limited Vs. Union of India and ors. 7, Their
Lordships observed that the averments made in the reply
affidavit of the department itself records that it is an
admitted position that in the petitioner's statement recorded
before the service tax authorities on November 24, 2016
and May 11, 2017, the Director of the Petitioner had
admitted service tax liability of Rs.12,24,99,843/-. This
Court held this to be an admissible quantification under the
scheme which was prior to the cut-off date. It is in these
circumstances, this Court held that the decision of the
respondents in declaring the petitioner as ineligible is
unjustified. Thus, the decision in M/s. Suyog Telematics
Limited (supra) will turn on the facts of that particular
case.
7 Writ Petition (L) No.807 of 2020
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(H) The decision relied by the learned counsel for the
petitioner in Joseph Daniel Massey Vs. Union of India
and ors.8 again is in the facts of that case where this Court
observed that the petitioner in a communication addressed
to the respondent No.3 had specifically mentioned that the
service tax amount due to be paid by the petitioner was
Rs.40,95,110/-.
24. We may now turn to the decision of this Court relied
upon by learned counsel for the respondents in the case of
Shri SiddhiKumar Infrastructure Private Limited Vs.
Union of India, Ministry of Finance and others 9 dated
February 17, 2021. This Court was considering a case where
the petitioner had in fact made a categorical statement that
the service tax liability as calculated was not acceptable to
the petitioner. This Court was of the opinion that there being
no admission of the petitioner as to its liability of service tax
dues prior to the cut-off date of June 30, 2019, declaration
of the petitioner was rightly rejected. In the present facts,
we find that the learned counsel for the petitioner has not
8 Writ Petition (St.) No.3151 of 2020
9 Writ Petition (L) No.3556 of 2020
36.wp.970-20 & ors.doc
been able to demonstrate and/or there is nothing on record
to indicate that the duty liability is admitted by the
petitioner. On the contrary, we find that though the amount
is quantified by the letter dated August 29, 2019, the
petitioner goes ahead and addresses the e-mail dated
November 16, 2019 stating that the matter in respect of
reversal of credit of Rs.75 lakhs is under process and that
the petitioner will revert back to the respondents shortly.
Further, it is mentioned in the said e-mail that the petitioner
attached the details of the credit taken within time and the
details of credit taken more than 365 days, meaning
thereby that even as late as on November 16, 2019, much
after the cut-off date, the petitioner still does not admit its
liability to pay the duty. In view of the decision in Shri
SiddhiKumar Infrastructure (supra), we are of the
considered view that even on this count, there being no
admission of the petitioner as to its liability of duty payable
prior to the cut-off date of June 30, 2019, the petitioner is
not entitled to any relief.
25. We, therefore, do not find any merit in the petitions.
36.wp.970-20 & ors.doc
The same are accordingly dismissed with no order as to
costs.
26. In the light of the disposal of Interim Application (L)
No.6262 of 2021, learned counsel for the applicant seeks
leave to withdraw the Interim Application (L) 6273 of 2021.
The Interim Application (L) 6273 of 2021 is allowed to be
withdrawn in the same terms as the order dated October 7,
2021 in Interim Application (L) No.6262 of 2021 in the
connected writ petition and disposed of accordingly.
(M.S. KARNIK, J.) (CHIEF JUSTICE)
Digitally
signed by
PRADNYA
PRADNYA MAKARAND
MAKARAND BHOGALE
BHOGALE Date:
2021.10.21
12:24:54
+0530
