2018 (12) TMI 263 – CESTAT NEW DELHI – TMI – Rejection of Voluntary Compliance Encouragement Scheme (VCES) – the tax dues declared by the appellant were for the subsequent period on the same issue for which a show Cause Notice dated 04.01.2011 for the period w.e.f. 01.01.2009 to 31.03.2010 had already been issued – time limitation – Held that:- Vide the impugned VCES-I, the appellant has declared his tax dues of ₹ 4,50,756 against the renting of immovable property services for the period w.e.f. 01.10.2008 to 31.03.2010. This perusal makes it clear that it is not merely that the category of service rendered is same but the allegation of not discharging the tax liability for rendering the said service and that the period for the alleged default is also same. Thus it becomes clear that a notice has already been issued to the appellant in respect of the same issue for the same period for which the appellant made the declaration under VCES-I – The said declaration is prohibited under
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Voluntary Compliance Encouragement Scheme dated 30.12.2013 had filed VCES-I declaring the tax dues of ₹ 4,50,756/- against renting of immovable property services for the period w.e.f. 01.10.2008 to 31.03.2010 vide challan No. 50518 dated 28.12.13. On examination of the said VCES-I, the Department observed that the tax dues declared by the appellant were for the subsequent period on the same issue for which a show Cause Notice dated 04.01.2011 for the period w.e.f. 01.01.2009 to 31.03.2010 had already been issued. Accordingly, a Show Cause Notice dated 25.02.2014 was issued proposing the rejection of the said VCES-I. The said proposal was confirmed vide Order-in-Original No. 1 dated 18.05.2015. It is thereafter that another Show Cause Notice No. 1216 dated 01.03.2016 was issued proposing the recovery of the service tax on ₹ 4,50,756/-. The said recovery has been confirmed vide the Order-in-Original dated 22.05.2018. Being aggrieved, the Appeal in hand have been filed. The s
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ory of service cannot be considered as the same issue which has been wrongly interpreted by the Department. It is further submitted that the Show Cause Notice is otherwise beyond the normal period of one year of the limitation and there was no intention of the appellant to evade the duty, extended period could not be invoked. Show Cause Notice is therefore barred by time and thus is liable to be set aside on this ground itself. Appeal is accordingly prayed to be allowed. 3. Mr. PR Gupta, Ld. DR while rebutting these arguments has submitted that there is no wrong interpretation on the part of the adjudicating authority below as alleged vide the previous Show Cause Notice of the year 2011. The liability of the appellant on account of renting of immovable property services for the same period for which the VCES has been filed was issued. The VCES has rightly been held to be covered under proviso 2 of Section 106. Appeal is prayed to be dismissed. 4. After hearing both the parties before p
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and submit a declaration. Under this Section, any person may declare his tax dues in respect of which no notice or an Order of determination under Sections as mentioned above has been issued or made before first day of March 2013. It further provides that where a notice or Order of determination has been issued to any person that person is debarred to avail the benefit of Scheme. Ld. Counsel for the appellant has challenged the Order alleging that the adjudicating authority below has given a wrong interpretation of the word any issue and same issue as used in Section 106. The term issue has nowhere being defined in the Finance Act 1944, or even in the Central Excise Act, 1994. Tribunal being a quasi-judicial authority can well rely upon the Civil/ Criminal Procedural Codes in the situations of ambiguity as the one in hand. Order 14 of Civil Procedure Code is about settlement of issues. Rule 1 sub-rule 1 thereof says that issues arise when a material proposition of fact or law is affir
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on under VCES-I. In view thereof I am of the firm opinion that the said declaration is prohibited under proviso 2 to Section 106(1) of VCES 2013. The Adjudicating Authority below are held to have committed no error while rejecting the said VCES Scheme. Order is held to have no infirmity. Appeal is accordingly dismissed. 5. The argument of the appellant for Show Cause Notice to be barred by time are also held to be not sustainable because the time limit for issuing notice under 101 of VCES will be applicable if and only if the assesse is entitled to file the VCES. Once it is apparent on record that rejection of VCES of appellant is correct due to a wrong declaration and non compliance of statutory provision. There is no need to look into the issue of limitation. As a result, I hold that there is no infirmity. Appeal is dismissed. [Pronounced in the open Court on 03.12.2018] – Case laws – Decisions – Judgements – Orders – Tax Management India – taxmanagementindia – taxmanagement – taxm
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