2018 (3) TMI 274 – CESTAT NEW DELHI – TMI – Voluntary Compliance Entitlement Scheme – whether in the facts and circumstances of the case, the provisions of Section 106(1) of Finance Act, 2013 debars the respondent not to take benefit of the scheme or not? – Held that: – Admittedly, for the earlier period, during the course of audit an objection was raised and respondent immediately reversed the Cenvat credit along with interest proceedings against the respondent were closed. The issue raised by the Revenue is that as the order of determination of their service tax liability, therefore, the respondent are not entitled to avail the benefit of Section 106(1) of the Finance Act, 2013.
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The similar issue came up before the Honble High Court of Bombay in the case of Pace Setter Business Solutions Pvt. Ltd. [2017 (4) TMI 564 – BOMBAY HIGH COURT] wherein on the identical facts the Hon’ble High Court hold that the assessee is entitled to avail the benefit of the scheme.
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Appeal dismi
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lowed the benefit of VCES 2013 to the respondent. Against the said order, Revenue is before me. 3. The ld. AR submits that in terms of Section 106(1), there is a bar on the assessee to take the benefit of that scheme in a case where show cause notice has been issued or liability of service tax has been determined under Section 72 or Section 73 or Section 73A of the Finance Act. It is his contention that for the period prior to the period for which VCES is filed there was a determination of their service tax liability, therefore, as per Section 106 (1) of the Finance Act, 2013, the respondent are not entitled to take the benefit of the said scheme. He also submits that the ld. Commissioner (Appeals) has relied on the decision in the case of Pace Setter Business Solutions Pvt. Ltd. (supra) as in that case the Hon ble High Court has entertained the issue in a writ petition filed by the petitioner. Therefore, the same is not applicable to the facts of this case. 4. On the other hand, the l
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the Finance Act, 1994 to hold that the relevant audit para of IAR No.95/08 is an order of determination made against the appellant. As there is no allegation that the relevant audit para is an order of determination under Section 72 or Section 73A of Finance Act, 1994 and such allegation has been levelled only in respect of Section 73 of the Finance Act, 1994. I proceed to examine as to whether the relevant audit para (which is admittedly closed upon payment of entire dues with interest by the appellant) is an order of determination under Section 73 of the Finance Act, 1994. I note that there is no dispute that no Show Cause Notice has been issued to the appellant in respect of relevant issue of the VCES declaration. This being the undisputed position, no order of determination can be issued to the appellant as an order of determination under Section 73 can be issued only pursuant to the issuance of a Show Cause Notice. The Adjudicating Authority is misconstrued to hold that the audit
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Notice. (v) I note that the similar issue has also come up for decision before the Hon ble High Court of Mumbai in Pace Setter Business Solutions Pvt. Ltd. Vs. UOI – 2017 (52) STR 11 (Bom.). In this case, the audit of petitioner has been conducted for the period 2005-06 to 2007-08 and an audit observation has been raised. Pursuant thereto, the petitioner has paid the amount of ₹ 13,33,972/- along with interest and the audit para has been closed. After that, the petitioner has declared an amount of ₹ 47.33 Lacs under VCES 2013. Their declaration has been rejected holding that the issue on which the VCES declaration has been filed is similar to the issue revealed by the audit party (as mentioned above). Feeling aggrieved, the petitioner has filed a writ petition before the Hon ble High Court. It has been held by the Hon ble Court that we are of the view that the payment which has been made and for a past audit objection, for an earlier period cannot be utilised to reject the
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