CGST, New Delhi Versus M\/s SMCC Construction India Pvt. Ltd.
Service Tax
2018 (3) TMI 274 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 6-3-2018
Appeal No. ST\/50286\/2018-SM – Final Order No. 50861\/2018
Service Tax
Hon'ble Mr. Ashok Jindal, Member (Judicial)
\nShri G.R. Singh, D.R. – for the appellant
\nShri Varun Gaba, Advocate – for the respondent
\nORDER
\nPer Ashok Jindal
\nRevenue is in appeal against the impugned order.
\n2. The facts of the case are that for the period 2004-2008, certain audit objections were raised for availment of inadmissible Cenvat credit by the respondent along with interest and proceedings against the respondent were closed. Later on, the respondent filed an application under Voluntarily Compliance Encouragement Scheme, 2013, on 25.9.2013 for the period 2008-2012 for reversal of inadmissible Cenvat credit taken by them. The said declaration was rejected in terms of Section 106(1) of Finance Act, 2013. On appeal, the ld. Commissioner <\/p>\n
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Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n e in a writ petition filed by the petitioner. Therefore, the same is not applicable to the facts of this case. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n 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 para of IAR No. 95\/08 is an 'order of determination' whereas subsections (3) & (4A) of Section 73 of Finance Act 1994 speak of waiver of Show Cause Notice and without issuance of SCN, no order of determination can be made under Section 73 of the Finance Act, 1994. Further, there is no allegation that pursuant to audit para, proviso to these sub-sections has been invoked against the appellant in respect of the issue of VCES declaration. What is important to note is the admittance of Adjudicating Authority that ' the audit para similar to the issue of VCES declaration stands closed upon payment of entire dues by the appellant along with interest'. Thus, it is an admitted position that no Show Cause Notice has been issued to the appellant in respect of the relevant audit para. When no Show Cause Notice has been issued to the appellant, th<\/p>\n = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n urt 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 application as is now made by the present writ petitioner. The application invoking VCES has to be considered and if at all rejected, it must be on the touchstone of the paragraphs of the VCES, 2013 and the wording thereof. The scheme itself cannot be defeated by holding that on the earlier occasion parties like the petitioners have accepted their liability….we allow the writ petition.” The ratio of this judgement is squarely applicable to the instant case. Further, as discussed above, there is no other objection barring the similarity of the issue of VCES declaration to an earlier audit para, which according to the aforecited judgement, is not sustainable. To sum up, I hold that (a) the audit para is not an 'order of determination' under Section 73 of the Finance Act, 1994 (b) Section 106(1) of the Finance Act, 1994 is not invocable<\/p>\n = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n","protected":false},"excerpt":{"rendered":" CGST, New Delhi Versus M\/s SMCC Construction India Pvt. Ltd.Service Tax2018 (3) TMI 274 – CESTAT NEW DELHI – TMICESTAT NEW DELHI – ATDated:- 6-3-2018Appeal No. ST\/50286\/2018-SM – Final Order No. 50861\/2018Service TaxHon'ble Mr. Ashok Jindal, Member (Judicial) Shri G.R. Singh, D.R. – for the appellant Shri Varun Gaba, Advocate – for the respondent ORDER … Continue reading “CGST, New Delhi Versus M\/s SMCC Construction India Pvt. Ltd.”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-10765","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/10765","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=10765"}],"version-history":[{"count":0,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/10765\/revisions"}],"wp:attachment":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=10765"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=10765"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=10765"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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\n4. On the other hand, the ld. Counsel appearing on behalf of the respondent reiterated the findings of the impugned order.
\n5. Heard both sides. Considered the submissions.
\n6. The short issue involved in the matter is that 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. 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. The said issue has been examined by the ld. Commissioner (Appeals) in the i<\/p>\n
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