2018 (12) TMI 1429 – BOMBAY HIGH COURT – TMI – Maintainability of appeal – Voluntary Compliance Encouragement Scheme – case of Revenue is that VCES being a self contained code under Finance Act, 2013 without any appeal provision in the scheme dismissed the appeal holding that the appeal is not maintainable – Held that:- Issue decided in the case of Narasimha Mills Pvt. Ltd. vs. Commissioner of C. Ex.(Appeals), Coimbatore, [2015 (6) TMI 787 – MADRAS HIGH COURT], where the very issue fall for consideration before the Madras High Court and the Madras High Court, by specific observation, dismissed the appeal on the ground that there is no remedy of appeal in the scheme would be giving unfettered power to the authority and same is not acceptable.
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The impugned order dated 22nd September, 2017 passed by the Customs, Excise and Service Tax Appellate Tribunal is quashed and set aside – Matter restored before CESTAT. – CENTRAL EXCISE APPEAL NO. 7 OF 2018 Dated:- 12-7-2018 – PRASANNA B. V
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cating authority confirmed the demand and ordered recovery of tax amount along with under Section 73 of the Finance Act, 1994, in addition penalty was imposed. 4. Being aggrieved, the appeal was preferred before the appellate tribunal by the appellant on 23rd January, 2016. The appellate tribunal initially issued notice and then on 22nd September, 2017 passed order. Same is impugned in the present appeal. 5. Mr. Sharma, learned Counsel appearing for the appellant invited our attention to the order and submitted that though firstly reference is made to the absence of the appellant, the tribunal subsequently by observing that VCES being a self contained code under Finance Act, 2013 without any appeal provision in the scheme dismissed the appeal holding that the appeal is not maintainable. He then submits that dismissal of appeal on the ground of no provision in the scheme is unsustainable. He further submits that basic Act itself provides remedy of appeal and merely because such appeal r
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ilar view which is taken by the Madras High Court in Narasimha Mills Pvt. Ltd (supra) is taken by Punjab and Haryana High Court in Barnala Builders & Property Consultants (supra). 8. Though Mr. Ladda, learned Counsel appearing for the respondent opposes the appeal, considering the facts of the present matter and considering the judgments relied on by Mr. Sharma, learned Counsel appearing for the appellant, we are of the view that there is no reason to adopt a different approach and view than the approach and view adopted by Madras High Court as well as Punjab & Haryana High Court. 9. It would be useful to refer observations of Madras High Court on the issue in paragraph Nos. 18 and 19, which read thus : 18. Further, it is relevant to note that the Service Tax Voluntary Compliance Encouragement Scheme, 2013 has been introduced by the Central Government, in exercise of the powers conferred by subsections (1) and (2) of Section 114 of the Finance Act, 2013 (17 of 2013) with effect
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jurisdiction, abused his powers, was biased, considered evidence which he should not have considered, or failed to consider evidence that he should have considered. To err is human and hence it cannot be expected that all the decision makers would be perfect in their approach in arriving at just conclusions. If any statute or scheme does not make the appeal provision, it would be nothing to mean that the order passed by the authority has become final and conclusive for all the purposes and thereby, giving uncontrolled and unquestionable powers to the said authority by virtue of which, he becomes as monopoly over the statute and will certainly act in an arrogant manner. In this case, the second respondent is the original authority, whose decision regarding the eligibility of the assessee under the scheme is final even if the said decision may perverse since no appeal provision has been made. Therefore, the entire scheme has virtually been vested exclusively within his control and the pa
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