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M/S Fashion Dezire & Another v/s Union Of India Through Principal Secretary, Ministry Of Finance, & Others

    Writ Tax No. 220 of 2020

    Decided On, 26 August 2021

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE NAHEED ARA MOONIS & THE HONOURABLE MR. JUSTICE SAUMITRA DAYAL SINGH

    For the Petitioner: Nishant Mishra, Advocate. For the Respondent: A.S.G.I.



Judgment Text

Saumitra Dayal Singh, J.

1. Heard Shri Nishant Mishra, learned counsel for the petitioners and Shri Ramesh Chandra Shukla, learned counsel for the Revenue. Shri Shukla has placed on record the written instructions received by him. The same has been marked as ''X' and retained on record.

2. Present petition has been filed to challenge the estimate furnished to the petitioners on the Form SVLDRS-2 dated 04.12.2019, under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 (hereinafter referred to as 'the Scheme'), to the extent, the Estimate Amount Payable ('EAP' in short) has been determined at Rs. 70,11,055.50 against total disputed ''tax dues' taken at Rs. 1,40,22,111/-. According to the petitioners, the net EAP amount should have been computed at Rs. 15,37,816.00 against the total disputed ''tax dues' Rs. 80,75,626/- only, after adjusting the amount of Rs. 25,00,000/- pre-deposited by the petitioners to maintain their appeals, filed earlier. A further consequential mandamus has been sought, effectively to issue the final SVLDRS-3, etc. Last, challenge has been raised to the adjudication order dated 30.12.2019 passed, pending the proceedings under the Scheme.

3. Undisputedly, the petitioners were earlier issued a Show Cause Notice dated 05.06.2015 proposing a demand of central excise duty, Rs. 1,40,22,111/-, under the Central Excise Act, 1944 (hereinafter referred to as 'the Act'). That proceeding culminated in the Order-in-Original dated 26.09.2016. Thereby, the central excise duty demand was confirmed at Rs. 80,75,626/- only. Thus, the central excise demand, Rs. 59,46,648/-, as proposed by the Show Cause Notice dated 5.6.2015 was not confirmed by the Adjudicating Authority under the Act. Against the order dated 26.09.2016, the two petitioners filed their individual appeals before the Customs, Excise and Service Tax Appellate Tribunal (in short 'CESTAT'). Those two appeals came to be allowed vide order dated 15.05.2019. The order dated 26.09.2016 was set aside and the adjudication proceedings remitted to the Adjudicating Authority. That order attained finality and the adjudication proceedings became pending (in remand).

4. In that fact background, on 01.09.2019, the Central Government introduced the Scheme by Finance (No.2) Act, 2019. The petitioner no.1 filed its (first) declaration under the Scheme, on 30.10.2019, disclosing disputed ''tax dues' Rs. 80,75,626/-, under the case category 'Litigation'.

5. It is the case of the petitioners that in the proceeding before the Designated Committee (under the Scheme), respondent no.3 was a member and simultaneously, he was the Adjudicating Authority under the Act - with respect to the Show Cause Notice dated 05.06.2015 (upon remand). Further, despite the order of the CESTAT dated 15.05.2019, the Designated Committee, at the insistence of respondent no.3 sought to treat the entire proposed demand (under Show Cause Notice dated 05.06.2015) Rs.1,40,22,111/- as the 'tax dues' under the Scheme. This prompted the petitioner no. 1 to file a Clarification Application before the CESTAT, on 1.11.2019, with respect to its final order dated 15.05.2019.

6. While that Clarification Application filed by the petitioners was pending, on 4.12.2019 itself, the Designated Committee (under the Scheme) disagreed with the computation of 'tax dues' and EAP disclosed by the petitioners on the (first) SVLDRS-1. It issued an estimate of 'tax dues' to the petitioners on the (first) Form SVLDRS-2 computing the EAP at Rs. 70,11,055.50, based on the excise duty liability Rs. 1,40,22,111/-, as proposed vide the Show Cause Notice dated 05.06.2015. The petitioners did not agree to the demand of EAP thus made. Thereupon, undeniably, the Designated Committee issued a notice dated 05.12.2019, fixing the date 06.12.2019, for final hearing. Accordingly, the petitioners filed their written objections/arguments dated 09.12.2019 and 26.12.2019. These facts and documents are on record. They have not been denied by the revenue. Some hearing also appears to have taken place. However, no final demand of EAP on SVLDRS-3, was issued by the Designated Committee.

7. While that proceeding remained thus pending, the Clarification Application filed by petitioner no. 1 came to be allowed by the Tribunal, on 7.1.2020. The Tribunal clarified that the subject matter of adjudication proceedings (in remand), pending before the Adjudicating Authority, was only with respect to the proposed demand Rs.80,75,626/-, as no appeal had been filed by the revenue against the Order-in-Original dated 26.09.2016.

8. On 30.12.2019, respondent no.3 passed the Order-in-Original, ostensibly in compliance of the Tribunal's order dated 15.5.2019 and adjudicated the Show Cause Notice dated 5.6.2015, on merits. It confirmed the disputed duty liability of the petitioner at Rs. 80,75,626/- and dropped the duty liability to the extent Rs. 59,46,648/-.

9. The Scheme that was to originally expire on 31.12.2019, was extended by the Central Government up to 15.01.2020. On 31.12.2019, the petitioner no.1 filed a (second) declaration disclosing the ''tax dues' Rs.80,75,626/-, under the case category 'Arrears'. The (second) declaration filed was also processed by the Designated Committee and accordingly, on 17.01.2020, a second estimate of EAP was issued to the petitioner on form SVLDRS-2, computing that demand at Rs. 58,45,379.20. Admittedly, the petitioner no.1 did not deposit the amount of EAP estimated on (first) form SVLDRS-2 issued on 4.12.2019 [against the (first) declaration], or on 17.01.2020 [against the (second) declaration].

10. Submission of learned counsel for the petitioner is: (i) in view of the Order-in-Original dated 29.06.2016 read with the order of the Tribunal dated 15.05.2019 and the further order dated 07.01.2020, the 'tax dues' pending adjudication were only Rs.80,75,626/-. Therefore, the EAP could be computed on that amount alone, under the case category 'Litigation'; (ii) since the (first) SVLDRS-2 was issued on 04.12.2019, respondent no.3 could not have passed the adjudication order on 30.12.2019; (iii) last, it has been submitted, the fact that petitioner no.1 filed its (second) declaration would be of no consequence and, in any case, it did not prejudice the rights of the petitioners arising under the (first) declaration, that had to be considered on its own merits.

11. The petition has been vehemently opposed by learned counsel for the revenue. He would contend, there is no error in the issuance of either of the two forms SVLDRS-2 and that the rights of the petitioners would be determined and governed by the proceedings on the second declaration filed by the petitioner no.1. The proceeding arising from the (first) declaration stood withdrawn or not pressed upon the petitioner no.1 filing and pursuing the (second) declaration. Since, the petitioners have not complied with either of the SVLDRS-2 issued to them, the writ petition lacks merit.

12. Having heard learned counsel for the parties and having perused the record, we proceed to consider the second submission advanced by learned counsel for the petitioner, first. The Scheme does not contain any express provision to stay a pending adjudication proceeding, by way of a legal effect/fiction arising from any declaration filed thereunder. Second, neither the petitioners nor the revenue challenged the earlier order of the Tribunal dated 15.05.2019 and there was no specific stay order operating against the same, in any proceeding.

13. Therefore, the proceedings in remand, arising under that order did not suffer from any inherent lack of jurisdiction or authority. At the same time, by necessary implication, springing from section 127(5)1 of the Scheme, the petitioner no. 1 had time till 03.01.2020 to deposit the net EAP amount communicated to it vide the (first) SVLDRS-2, issued on 04.12.2019, or to object to the same under section 127(3)2 read with section 127(4)3 of the Scheme. If deposited, it would foreclose the decision in the pending adjudication proceeding. It is so, because, under section 127(6)4 of the Scheme, upon that deposit made in compliance of the EAP demand, the reply filed by the petitioner no. 1 to the Show Cause Notice dated 05.06.2015 would stand withdrawn, on deemed basis.

14. Then, under section 1235 read with section 1246 and section 121(c)7 of the Scheme, the computation of the ''tax dues' and consequently determination of the EAP would depend on the case category ''Litigation' or ''Arrears'. The computation of the EAP under ''Litigation' i.e. pending adjudication case category, would be substantially lower than that computed under the ''Arrears' category. There is a complete absence of any statutory intent to allow for change of case category from ''Litigation' to ''Arrears' or to redetermine of the ''tax dues' and EAP upon an adjudication order coming into existence during the pendency of proceedings under the Scheme. Therefore, once the petitioner had (rightly) filed the (first) declaration on 10.10.2019 under the case category ''Litigation', determination of the EAP amount would be governed accordingly. It cannot be changed, thereafter.

15. Also, by virtue of section 127(8)8 read with Section 129(1)(a)9 of the Scheme, any demand of duty, even if created in the meanwhile, would not survive the issue of the Discharge Certificate. Again, issue of that certificate is a mandatory consequence of, deposit of the EAP amount.

16. Therefore, if the adjudication proceedings is allowed to continue and be concluded during the pendency of a Discharge Certificate proceeding, arising from a valid declaration filed under the Scheme, it would defeat the declaration made and, therefore, defeat the object of reform i.e. to end ''legacy disputes'. Therefore, the proceedings under the Scheme must necessarily take precedence over the regular adjudication proceedings under the Act.

17. In view of that implied overriding effect arising to the Discharge Certificate (issued under section 127(8)8 of the Scheme), over the duty, interest and penalty, determined under the Act and; the limited time of ninety (90) days (from the date of filing of the declaration), contemplated under the Scheme, to conclude the proceedings - to issue that Discharge Certificate, there is inherent logic and purpose in the nature of things arising under the Scheme, as may commend to the Adjudicating Authority and or the Appeal Authority, as the case maybe to not conclude such proceeding before expiry of the time granted to deposit the EAP, under the relevant SVLDRS-2. In Writ Tax No. 832 of 2020, M/s Jay Shree Industries Vs. Union of India & Anr, decided on 06.08.2021, we have opined that the Scheme is a piece of reform legislation. In that case, relying on R.E.M.S. Abdul Hameed v. Govindaraju & Ors. (1999) 4 SCC 663, we have looked at the intention of the legislature to interpret the meaning of the word ''penalty' appearing in Section 129(1)(a)9 of the Scheme. Here also, if we allow the Adjudicating Authority to conclude an adjudication proceeding during the pendency of a Discharge Certificate proceeding, it would run contrary to the intention of the Scheme to bring an end to the disputes under the Act. Any interpretation given to the Scheme as may defeat its purpose and object of the reform, must therefore be rejected. A purposive interpretation must therefore be adopted.

18. Then, under section 127(5)1 read with Rule 6(2)10 of the Sabka Vishwas (Legacy Dispute Resolution) Scheme Rules, 2019 (hereinafter referred to as the Rules), only that amount could be paid by the petitioner, electronically, as may be first communicated to it by the Designated Committee, on form SVLDRS-3. Here, under the (first) SVLDRS-2 form dated 04.12.2019, that time existed till 03.01.2020. Moreover, upon notice for hearing issued on 05.12.2019 and upon the objections filed by the petitioner on 09.12.2019 and 26.12.2019 and in view of the date of hearing fixed for 06.12.2019, that time did not run out since the Designated Committee failed to issue the mandatory final demand of EAP on SVLDRS-3 under section 127 (4)3 of the Scheme read with Rule 6(2)10 of the Rules, on or before 29.12.2019 or thereafter. The statute having prescribed the manner to raise the demand of EAP and to pay that amount by a particular method, it could not have been demanded or paid otherwise. That rule stands long settled since a four Judge Supreme Court decision in Patna Improvement Trust Vs. Smt. Lakshmi Devi, AIR 1963 SC 1077.

19. For the above reasons and in absence of any statutory risk to the adjudication proceedings being hit by any rule of limitation, those proceedings should necessarily have been kept in abeyance till the conclusion of the proceedings under the Scheme. We cannot contemplate, what useful purpose could be served by continuing and concluding the adjudication proceeding during the pendency of the proceedings arising upon filing of the (first) declaration on SVLDRS-1, under the Scheme, on 30.10.2019. In fact, by their conduct the authorities under the Act could not have defeated the object of an otherwise valid proceedings under the Scheme.

20. That said, we are unable to reach a conclusion that the respondent no. 3 lacked inherent jurisdiction to pass the Order-in-Original dated 30.12.2019. As discussed above, we conclude that the said order was tainted with impropriety, to the extent that order was passed during thirty (30) days from issuance of the SVLDRS-2 on 04.12.2019. Therefore, in the first place, it could not have been enforced till 03.01.2020, in view of the language of section 127(2)11 and section 127(5)1 of the Scheme.

21. Thus, till 03.01.2020, the Order-in-Original dated 30.12.2019 remained in a state of suspended animation. Thereafter, it has continued in that state, till date. It is so, since, as noted above, the petitioner disputed the computation of ''tax dues' and filed written objections/arguments to the EAP demanded on the (first) SVLDRS-2 dated 04.12.2019. In view of those objections filed and by virtue of sections 127(3)2 and 127(4)3 of the Scheme, the Designated Committee was obligated to deal with the same and necessarily raise an appropriate final demand of EAP, on SVLDRS-3, preferably on or before 29.12.2019.

22. That is so, since the Designated Committee fixed the date of post-decisional hearing on 06.12.2019 and entertained written objections dated 09.12.2019 and 26.12.2019, yet, it did not pass any order on those written objections/arguments filed by the petitioner. It also did not issue the revised/final statement in electronic form, being SVLDRS-3 under section 127(4)3 of the Scheme read with Rule 6(2)10 of the Rules. Since no communication was made to the petitioners on SVLDRS-3, the time provided under section 127(5)1 of the Scheme has not started running, yet. Therefore, the proceedings arising from the (first) declaration filed by the petitioner dated 30.10.2019 are still pending under the Scheme.

23. In absence of any consequence of abatement etc. being prescribed either by the Scheme or the Rules, the time limit of sixty (60) days under section 127(4)3 of the Scheme is purely directory. The statutory authority/Designated Committee having failed to act within time contemplated under the Scheme, it cannot escape its obligation - to issue the appropriate final demand of EAP on form SVLDRS-3. This conclusion we base on the principle enunciated by the Supreme Court in Sharif-Ud-din Vs. Abdul Gani Lone, (1980) SCC 403 that in absence of consequences being provided, the time limit/provisions would remain directory.

24. Therefore, the Designated Committee continues to be obliged to issue the final demand of EAP on form SVLDRS-3. That not done, the Order-in-Original, though it exists, continues in a state of animated suspension. It has not come to life. It cannot be given effect to. It confers no enforceable rights or obligations, at present. Only, if the petitioners fail to deposit the final EAP amount that may be demanded within thirty (30) days of issue of the demand on form SVLDRS-3, by the Designated Committee, the said order may come to life (in future) and become enforceable with rights of recovery and appeal etc., at that stage, in that contingency, only. Therefore, at present, EAP may be computed only on the basis of the (first) declaration on SVLDRS-1 dated 30.10.2019.

25. Coming to the third submission advanced by learned counsel for the petitioner, the (second) declaration filed by the petitioner, arising from the Order-in-Original dated 30.12.2019 first, as discussed above, even today, that order continues in a state of animated suspension, on account of the continued pendency of the (first) declaration filed on SVLDRS-1 dated 30.10.2019 filed by the petitioners. It serves no practical or legal purpose, at present. Therefore, it could not have given rise to the (second) declaration on form SVLDRS-1, filed on 31.12.2019. Even otherwise, by virtue of the section 121(c)(i)7 read with section 123(a)(i)5 of the Scheme, the cut-off date 30.06.2019 exists - to file a declaration with respect to any order that may have been passed upon conclusion of adjudication proceedings under the Act. Either the appeal from such order must have been filed on or before 30.06.2019 or the limitation to file that appeal must have expired (at the time of filing the declaration). In the present case, neither condition was fulfilled on 31.12.2019. Therefore the (second) declaration filed by the petitioners arising from the adjudication order dated 30.12.2019 was non-est. It was not maintainable in law. Thus, the (second) declaration, though filed by the petitioners, causes no legal effect. It was entertained and a demand of EAP dated 17.01.2020 was raised thereon, without any jurisdiction. It must therefore be ignored, notwithstanding the contention of the petitioners that it was filed by way of abundant caution. The principle "competence of a court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction", laid down by a Constitutional Bench of the Supreme Court in Hiralal Patni Vs. Sri Kali Nath, AIR 1962 SC 199, in the context of regular civil proceedings applies with equal force to the present quasi-judicial proceeding.

26. As to the first submission advanced by learned co

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unsel for the petitioner, in view of the discussion made above, first, we are of the view, once a valid (first) declaration dated 30.10.2019 had been filed on SVLDRS-1, it had to be processed by the Designated Committee. In fact, that Committee did not accept the petitioner's disclosure thus made. Accordingly, it issued demand of EAP on SVLDRS-2 on 04.12.2019 and fixed 06.12.2019 as the date for the post-decisional hearing, in terms of section 127(3)2 of the Scheme. The Designated Committee also took on record written objections/arguments filed by the petitioners dated 09.12.2019 and 26.12.2019 and it also appears to have heard the matter at some length. However, it did not discharge its statutory obligation and it did not respond to the same as mandated under section 127(4)3 of the Scheme. Having failed to issue the revised EAP demand on form SVLDRS-3, the (first) declaration of SVLDRS-1 (filed by the petitioners on 30.10.2019) is still pending. Since, the matter is still pending before the Designated Committee, we are not required to answer the question of determination of the EAP, at this stage. 27. In view of the above, we allow the writ petition, in part, with a direction upon the Designated Committee to necessarily consider the written objections/arguments filed by the petitioners dated 09.12.2019 and 26.12.2019, in response to the SVLDRS-2 dated 04.12.2019 and to issue the appropriate final demand of net EAP on form SVLDRS-3 to the petitioners within a period of thirty (30) days from the date of communication of this order, after hearing the parties and considering their respective contentions as to computation of the correct EAP amount. All further rights and liabilities will arise and be governed accordingly. 28. For reasons, given above, there is no occasion to entertain the writ petition with respect to the challenge raised to the adjudication order dated 30.12.2019, at this stage. To that extent, interference is declined. 29. Accordingly, the writ petition is allowed in part. No order as to costs.
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