Coach India v. Superintendent of Central Tax and Central Excise, Thrissur; Assistant Commissioner Central Tax and Central Excise, Thrissur; Ministry of Finance; Central Board of Indirect Taxes and Customs

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **&** **THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.** **MONDAY, THE 8[TH] DAY OF APRIL 2024 / 19TH CHAITHRA, 1946** **WA NO. 266 OF 2024** **AGAINST THE JUDGMENT DATED 19.01.2024 IN WP(C) NO.20999 OF 2022 OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** **COACH INDIA, REPRESENTED BY PARTNER, NISAM IIND FLOOR, FORT STREET BUILDING, EAST FORT JUNCTION, THRISSUR, PIN – 680005** **BY ADVS. SRI.P.RAGHUNATHAN SRI.PREMJIT NAGENDRAN** ## **RESPONDENTS/RESPONDENTS:** - **1 SUPERINTENDENT OF CENTRAL TAX AND CENTRAL EXCISE, CHEMBUKKAVU RANGE, THRISSUR DIVISION, S.T. NAGAR, THRISSUR, PIN – 680001** - **2 ASSISTANT COMMISSIONER CENTRAL TAX AND CENTRAL EXCISE, THRISSUR DIVISION, S.T. NAGAR, THRISSUR, PIN – 680001** - **3 MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NEW DELHI, REPRESENTED BY SECRETARY, PIN – 110001** - **4 CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS (ERSTWHILE CENTRAL BOARD OF EXCISE AND CUSTOMS), MINISTRY OF FINANCE,NEW DELHI, REPRESENTED BY CHAIRMAN, PIN - 110001** ## **BY ADVS. SRI.SREELAL N WARRIER, SC.** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 08.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** :2: WA No.266 of 2024 ## **JUDGMENT** ## **Dr. A.K.Jayasankaran Nambiar, J.** The petitioner in WP(C).No.20999 of 2022 is the appellant herein aggrieved by the judgment dated 19.01.2024 of the learned Single Judge. 2. Briefly stated the facts necessary for the disposal of the Writ Appeal are as follows: The appellant is running a coaching centre where students are coached for competitive examinations for entry into professional courses such as MBBS and Engineering. For non-payment of service tax in respect of services rendered under the head of 'commercial training and coaching services', the appellant was issued a show cause notice dated 13.06.2018 demanding substantial amounts towards service tax for the period from 2016 to 2018. While the proceedings pursuant to the show cause notice were ongoing, the Government came out with Notification No.5 of 2019, dated 21.08.2019 announcing the “SUBKA VISHWAS” [Legacy Dispute Resolution] Scheme and its associated Rules, 2019. Under Rule 3 of the Rules framed for implementing the :3: WA No.266 of 2024 Amnesty Scheme, an applicant was required to file a declaration stating the amount payable under the Scheme, which declaration would thereafter be verified by the Designated Committee constituted under Rule 5 thereof. The applicant would then get a statement specifying the amount payable by him through the web portal within 60 days from the date of receipt of the declaration. This amount had to be paid by the applicant within 30 days from the uploading of the Form SVLDRS-3, in which event the applicant would get the benefit of the Amnesty Scheme. 3. The appellant opted to avail of the benefit of the Amnesty Scheme and admittedly uploaded his application in Form SVLDRS-1 on 14.01.2020. He had computed the liability under the Amnesty Scheme at Rs.13,895/-. The Designated Committee considered the appellant's declaration form and issued the SVLDRS-3 dated 19.02.2020 mentioning the amount payable by the appellant as Rs.13,895/-. As per the Scheme, the payment of the said amount had to be effected on or before 31.03.2020. We are given to understand that the date for payment of this amount was subsequently extended to 30.06.2020. The case of the appellant in the Writ Petition was that he noticed the SVLDRS-3 intimation on the CBIC website only on or around 15.06.2020 since the period during April and May were holidays for the :4: WA No.266 of 2024 coaching centre, and therefore, the appellant did not access the CBIC website during the said period. It is his further case that thereafter while he attempted to make the payment of Rs.13,895/- through the CBIC website, he was not able to do so on account of technical glitches and it was therefore that he could not effect the payment of Rs.13,895/on or before the last date namely, 30.06.2020. 4. The appellant approached this Court through the Writ Petition when he was faced with Ext.P6 order that confirmed a demand of Rs.13,44,668/- and a penalty of the like amount against him for nonpayment of service tax dues for the period from 2016-2017 to 20172018. 5. The learned Single Judge, who considered the matter took note of the decision of the Supreme Court in Y **ashi Constructions v. Union of India and Others [2022 SCC OnLine SC 723]** to find that inasmuch as the appellant had failed to deposit the amount within the time prescribed under the Scheme, no relief could be granted to him and further the limitation period under the Scheme could not be extended to suit the interests of the appellant. The learned Judge found that the appellant had chosen to take the benefit of the Scheme by uploading the SVLDRS-1 Form and although he was aware of the time :5: WA No.266 of 2024 schedule within which the payment would have to be made under the Scheme he had noticed the SVLDRS-3 intimation on the CBIC website only on 15.06.2020, by which time the original period for compliance through payment had already expired. While the period for making the payment was subsequently extended up to 30.06.2020, the appellant had not made the payment before the last date under the extended period either. The learned Judge, therefore, found that the conduct of the appellant did not call for the grant of the reliefs prayed for in the Writ Petition. 6. Before us, the learned counsel for the appellant Sri. Raghunathan P would contend that it was only on account of certain technical glitches that the appellant could not effect the payment that was required to be made in terms of the Amnesty Scheme. According to him, the appellant had attempted to make the payments by accessing the website of the CBIC on 29.06.2020, but he was not able to make the payment on account of certain technical glitches that were faced not only by him, but also by his Chartered Accountant who had attempted to make the payment. To prove his bona fides, he relies on Ext.P3 deposit slip, which shows the payment of the amount of Rs.13,900/- to his Chartered Accountant on 29.06.2020. He would also point out that it is unbelievable that a person would not pay an amount of Rs.13,895/- to :6: WA No.266 of 2024 save himself from a liability of more than 25 lakhs. 7. Taking note of the submissions of the learned counsel for the appellant, we had asked the learned Standing Counsel for the respondents to get instructions from the System Administrator as regards whether there was any attempt at making payment of the amount by the appellant on the dates aforementioned. Through an affidavit filed before us, the Assistant Director attached to the office of the Principal Additional Director General of Systems and Data Management, GST and Central Excise, GST Bhavan, Chennai, has submitted a report giving details of the user activity, namely, particulars of attempted transactions by the appellant during the period from 28.06.2020 to 30.06.2020. The said report shows that while there was no attempt by the appellant to log in to the system on 28.06.2020, the appellant had actually logged in twice to the SVLDRS portal on 29.06.2020 between 11:14:35 am and 11:48:14 am. There was no attempt at logging in to the web portal on 30.06.2020. The report also makes it clear that there were no details available to show that the appellant had attempted to make payment for the purposes of the SVLDRS on any of those days. 8. Taking note of the said report issued by the Assistant Director :7: WA No.266 of 2024 attached to the office of the Principal Additional Director General of Systems and Data Management GST and Central Excise, GST Bhavan, Chennai, we are of the view that the contention of the appellant regarding technical glitches of the system cannot be accepted. We must remind ourselves that this is a case where the appellant who had applied for the benefit of the Amnesty Scheme was well aware of the strict time schedule that had to be adhered to for making payments under the Scheme. It clearly comes out through the affidavit of the appellant himself that he came to know of the SVLDRS-3 intimation only on 15.06.2020, which was well after the last date of 31.03.2020 for making payments as originally envisaged under the Scheme. He obtained a fresh opportunity to avail the benefit of the scheme by making payments only on account of the extension granted for making payments under the Scheme and even then, the appellant states that he attempted to make the payment only on the penultimate date before the closure of the Scheme. While the appellant apparently accessed the web portal of the SVLDRS on 29.06.2020, he does not appear to have attempted to make the payment envisaged since such details have not been captured by the system. In the result, we find ourselves unable to consider the case of the appellant for a lenient view in this matter. The terms of the Amnesty :8: WA No.266 of 2024 Scheme being of the nature of an exemption from the requirement to pay the actual tax due to the government, have to be considered strictly in favour of the revenue and against the assessee, and hence the appellant cannot be permitted to avail the benefit of the Scheme on the facts of the instant case. The Writ Appeal, therefore, fails and is accordingly dismissed. We make it clear that the dismissal of this Writ Appeal is without prejudice to the right of the appellant to prefer an appeal against the order impugned in the Writ Petition before the statutory appellate authority. Sd/- **DR. A.K.JAYASANKARAN NAMBIAR JUDGE** Sd/- **SYAM KUMAR V.M. JUDGE** mns