Madhya Pradesh High Court
M/S Maya Fan Air Engineering Private ... vs Union Of India on 19 January, 2022
Author: Chief Justice
Bench: Ravi Malimath, Pranay Verma
1
IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
BEFORE
HON'BLE SHRI JUSTICE RAVI MALIMATH,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 19th OF JANUARY, 2022
WRIT PETITION No. 17252 of 2021
Between:-
1. M/S MAYA FAN AIR ENGINEERING PRIVATE
LIMITED THROUGH DIRECTOR SHRI AMIT
CHOURASIA PLOT NO. 53-B, INDUSTIRAL
AREA NO. 1 (MADHYA PRADESH)
2. SHRI ANKIT CHAURASIA (PROPRIETOR)
OCCUPATION: M/S MAYA COOLING
TECHNOLOGIES PLOT NO. 53-B, INDUSTIRAL
AREA NO. 1 A.B. ROAD (MADHYA PRADESH)
3. SHRI AMIT CHAURASIA: DIRECTOR M/S
MAYA FAN AIR ENGINEERING PVT. LTD.
PLOT NO. 53-B, INDUSTIRAL AREA NO. 1 A.B.
ROAD AB ROAD (MADHYA PRADESH)
.....PETITIONER
(BY SHRI MANOJ MUNSHI, ADVOCATE)
AND
1. UNION OF INDIA, REVENUE SECRETARY,
MINISTRY OF FINANCE, 128-A, NORTH BLOCK
(DELHI)
2. CENTRAL BOARD OF INDIRECT TAXES AND
CUSTOM, NORTH BLOCK, (DELHI)
3. DEPUTY COMMISSIONER, CUSTOMS,
CENTRAL EXCISE AND SERVICE TAX,
DIVISION DEWAS, 61, INDUSTRIAL AREA NO.
3, DEWAS (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI PRASANNA PRASAD, ADVOCATE)
(Heard through Video Conferencing)
This petition coming on for admission this day, Shri Justice Pranay
Verma passed the following:
ORDER
01. By this petition preferred under Article 226 of the Constitution of India, the petitioners have prayed for a direction to the respondents to accept Signature Not Verified SAN the amount of tax of Rs.10,30,273.60/- which was returned inadvertently due to Digitally signed by JYOTI CHOURASIA Date: 2022.01.22 12:34:08 IST 2 mismatch in the amount remitted.
02. As per the petitioners, petitioner No.1 is a registered company engaged in manufacturing of FRP Fans and Cooling Towers. By a notice dated 09.05.2017, the petitioners were directed to show cause as to why Central Excise Duty amounting to Rs.25,75,684/- should not be recovered from them under the provisions of Section 11 AC of the Central Excise Act, 1994 and why penalty as stated should not be imposed. Thereafter, by order dated 12.09.2018, respondent No.3 raised a demand of Rs.25,75,684/- along with interest and penalty from petitioner No.1 and levied penalty of Rs.13 Lakhs each on petitioners No.2 & 3.
03. It is the case of petitioners that under the Finance Act, 2019 an Amnesty Scheme in the name of "Sab Ka Vishwas (Legacy Dispute Resolution) Scheme, 2019" was introduced for resolving disputes relating to erstwhile Service Tax and Central Excise Acts. The scheme was for benefit of tax payers who wished to close their pending disputes with substantial relief in payment of tax and waiver of interest and penalties. The Scheme came into force from 01.09.2019 and Rules were also framed thereunder. The petitioners with a view to take benefit of the Amnesty Scheme filed a declaration on 05.12.2019 claiming relief to the extent of 60% of tax amount and undertook to pay tax of Rs.10,30,273.60/- before due date.
04. On 29.06.2020, the petitioners remitted a sum of Rs.10,30,274/- as against the demand of Rs.10,30,273.60/-. However, there was mismatch in the amount payable and the amount paid resultantly the remittance got rejected on the same day. As petitioners were having sweep in their bank account, the computer system deposited Rs.10 Lakhs in a Fixed Deposit and the balance therein remained almost the same. As a result thereof, the petitioners remained unaware and believed that remittance to respondents has been affected.
05. The petitioners came to know about return of remittance when reminder for payment dated 03.02.2021 was received by them. They made enquiries regarding reasons for the same and came to know that due to mismatch in the amount remitted and the amount payable the system has Signature Not Verified SAN returned the remittance. Thereafter, they approached respondent No.3 for Digitally signed by JYOTI CHOURASIA Date: 2022.01.22 12:34:08 IST 3 acceptance of payment but since the scheme was already closed, no response was received by them. Thereafter, on 22.06.2021, the petitioners have once again received demand of tax of Rs.25,75,684/- along with interest and penalty, hence have filed this petition.
06. Learned counsel for the petitioners submits that return of remittance made by the petitioners was only on account of mismatch in the amount remitted and amount payable. Since after return of remittance a sum of Rs.10 Lakhs was automatically transferred in a fixed deposit in the bank, the balance in the account continued to be almost the same and petitioners did not acquire knowledge of return of remittance and remained under impression that the same has been accepted for which reason they did not take any steps immediately for payment of the amount. The petitioners had with a good intention for avoiding fraction of rupees made the payment rounding off to the nearest rupee. There was no deliberate intention on their part for the remittance not to have resulted in its acceptance. The Amnesty scheme is a welfare scheme and the petitioners have maintained the balance in their account till date and deserve to be granted benefit of scheme. Reliance has been placed upon two Division Bench Judgments of this Court arising out of the same scheme under consideration. It is lastly submitted that the petitioners are still ready and willing to deposit the amount along with interest up to date hence be granted benefit under the scheme.
07. Learned counsel for the respondents submits that there are no bona fides on part of petitioners in the matter of payment by them. No certificate/document issued by banker of petitioners supporting their contention regarding non-acceptance due to mismatch has been filed. The last date of remittance was 30.06.2020 and on payment a discharge certificate was to be issued by the department and if petitioners had reasons to believe that their transfer had been effected, they would have certainly pressed for grant of discharge certificate in their favour. However, the same was not done by them. The petitioners have been fully aware of non- transfer of the amount and have been enjoying the same ever since then by keeping it in a fixed deposit. The last Signature Not Verified SAN date for scheme was 15.01.2022 which has lapsed hence no relief can be Digitally signed by JYOTI CHOURASIA Date: 2022.01.22 12:34:08 IST 4 granted in favour of the petitioners. Reliance has been placed upon a decision of the Allahabad High Court in the case of Shekhar Resorts Ltd. Vs. Union of India 2021 (52) G.S.T.L. 11 (All.)
08. Having heard the learned counsel for the parties, it is seen that as per petitioners they had transferred the amount of Rs.10,30,274/- on 30.06.2020 which had been returned that day itself and a sum of Rs.10 Lakh had been kept in a fixed deposit by the Bank. There is no material available on record except bald statements of petitioners that they were having a sweep facility in their account as a result which the said amount got transferred to a fixed deposit in absence of which it shall be presumed that they were aware of such return and amount being kept in the fixed deposit. It is well known that when an amount to the tune as is in the present case is transferred message is received by bank account holder either on the mobile or through E-mail. The same is the case when the transfer is declined and the amount is re-credited in the bank account. It cannot hence be assumed that the petitioners were not aware of the return of remittance having been made in their account.
09. As per Rule 9 of the "Sab Ka Vishwa (Legacy Dispute Resolution) Scheme, 2019", designated committee on being satisfied of payment of amount in full as determined by it shall issue electronically a discharge certified under sub Section (8) of Section 127 of the Finance Act, 2019 within 30 days of the payment and submission of proof. Had the petitioners remitted the amount of Rs.10,30,274/- on 30.06.2020, on an after 31.07.2020 they would have certainly made efforts for procuring a discharge certificate as aforesaid. However, there is absolutely no whisper in the entire petition as regards any effort to that effect having been made by the petitioners. As per the petitioners if they had made the payment they would have certainly insisted upon issuance of the certificate.
10. Though the scheme stood lapsed the petitioners did not pursue the matter further and kept absolutely quite about it. They were served with a demand notice on 03.02.2021 requiring them to deposit dues of Rs.25,75,684/ along with interest and penalty of 25,75,684/- by petitioner No.1 and penalty of Signature Not Verified SAN Rs.26 Lakhs by petitioners No.2 & 3 thereupon. The natural course of conduct Digitally signed by JYOTI CHOURASIA Date: 2022.01.22 12:34:08 IST 5 for the petitioners upon service of the said notices would have been to take up the matter with the department informing it that they have already paid the amount under the Amnesty scheme hence are now not liable for payment of any amount as demanded. However, the petitioners did not do so and were again on 22.06.2021 served with another demand notice for the aforesaid amount. Yet they did not take up the matter with the department. They did not submit any reply to the notice nor entered into any correspondence which, if they had deposited the amount as contended by them, they certainly would have. On the other hand, they have preferred this petition before this Court on 03.09.2021 which is also after more than two months from the date of service of notice dated 22.06.2021.
11. It is hence apparent that they are no bona fides on part of the petitioners in approaching this Court. Their conduct manifestly shows that they were always aware of the return of the amount which was purportedly remitted by them. On the contrary, they have kept the amount in a fixed deposit and have been earning interest from it. They have never taken any steps subsequent to 30.06.2020 i.e. on the date when the remittance was made till filing of this petition in September 2021. The contention as raised by the petitioners in this petition hence are not liable to be accepted.
12. The submission of petitioners that the they are still ready and willing to deposit the amount along with interest up to date hence be granted the benefit under the scheme is also liable to be rejected as the same appears to be a mere after thought and an effort by them to wriggle out of the lapses on their part. In any case the Amnesty scheme has already come to an end hence no benefit under the same can be granted to the petitioners. In this regard reliance has rightly been placed by the learned counsel for the respondents on the decision in Shekhar Resorts Ltd. (supra).
13. The orders which have been passed in other cases in respect of the scheme are all on different factual matrix and no general principle of law has been laid down therein. On the facts as pleaded in the present petition, the petitioners are not entitled for any reliefs. For all the aforesaid reason, we find Signature Not Verified SAN that this petition is devoid of any merits, hence is accordingly dismissed.
Digitally signed by JYOTI CHOURASIA Date: 2022.01.22 12:34:08 IST 6 (RAVI MALIMATH) (PRANAY VERMA)
CHIEF JUSTICE JUDGE
jyoti
Signature Not Verified
SAN
Digitally signed by JYOTI
CHOURASIA
Date: 2022.01.22 12:34:08 IST