Sangeet Lodha,J. - (1.) This writ petition is directed against orders dated 12.11.19 & 16.12.19, whereby the application preferred by the petitioner for availing the benefits under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 ('Scheme of 2019') in respect of the refund amount of Rs.26,80,834/- claiming the same to be amount in arrears in terms of provisions of clause (c) of Section 121 of Finance Act, 2019 (for short "the Act of 2019"), stands rejected by the designated committee.
(2.) The facts relevant are that pursuant to the proceeding initiated by the adjudicating authority under Section 11 A of Central Excise Act, 1944 against the petitioner for levy of excise duty in respect of process of cutting of marble blocks into marble slabs and tiles, vide order dated 20.11.97, a demand of excise duty to the tune of Rs. 20,80,834/- and penalty of Rs.20,50,000/- was imposed. However, an appeal preferred by the petitioner before the Custom & Service Tax Appellate Tribunal ('the Tribunal') was disposed of by the Tribunal by remanding the matter back to the adjudicating authority. The adjudicating authority vide order dated 18.12.2000 reconfirmed the duty and penalty. On an appeal being filed by the petitioner, vide order dated 23.2.2001, the Tribunal affirmed the demand of duty of Rs.20,80,835/-, however, reduced the penalty imposed u/s 11AC of the Act of 1994 from Rs.20,50,000/- to Rs.5,00,000/-. The petitioner discharged the demand created as aforesaid and also deposited interest amounting to Rs.1,50,000/-. Subsequently, the petitioner challenged the levy of duty by way of a writ petition before this Court taking the stand that cutting of marbles, blocks into marble slabs does not amount to manufacturing activity. The writ petition was allowed by this Court vide order dated 24.8.06 and the order passed by the adjudicating authority creating the demand of excise duty and penalty was quashed and it was directed that the amount already recovered will be subject to refund u/s 11B of the Act of 1994. Pursuant to the order passed by this Court, the petitioner claimed refund of Rs.26,80,834/- which was sanctioned by the Assistant Commissioner, Central Excise & Service Tax, Udaipur vide order dated 30.8.07. Aggrieved by the decision of this Court, the Revenue preferred a Special Leave Petition (SLP) (converted into Civil Appeal No.5857/07) before the Hon'ble Supreme Court, which was allowed vide order dated 16.10.15 and the order passed by this Court directing refund of the amount of duty, penalty and interest was set aside. Consequently, vide order dated 30.11.17 issued by the Assistant Commissioner, Central Excise & Service Tax, Division D, Kankaroli, the petitioner was directed to refund the amount of Rs.26,80,834/- erroneously granted. The petitioner challenged the legality of the order dated 30.11.17 before this Court by way of Writ Petition being D.B.C.W.P. No.880/18 which was dismissed by this Court vide order dated 26.4.19 and the order dated 30.11.17 was upheld. The SLP preferred by the petitioner against the order dated 26.4.19 passed by this Court was dismissed by the Hon'ble Supreme Court vide order dated 2.7.19. Consequently, the Superintendent, Central Excise, Goods & Service, Range XVI, Kankaroli, raised a demand of Rs.26,80,834/- alongwith interest vide letter dated 23.7.19. Suffice it to say that the demand of refund amount erroneously granted attained finality. The petitioner made an application claiming benefit under the Scheme of 2019 taking the stand that the refund amount claimed falls within the definition of 'amount in arrears' under clause (c) of Section 121 of the Act of 2019. The application preferred by the petitioner was rejected by the designated committee holding that by virtue of provisions of Section 125(1) (d) of the Act of 2019, the petitioner is not eligible for benefits inasmuch as, the issue pertains to amount refunded erroneously. Hence, this petition.
(3.) Learned counsel appearing for the petitioner contended that the petitioner is entitled for benefit under the Scheme of 2019 inasmuch as, the amount become recoverable, on account of no appeal having been filed by the petitioner and thus, it falls within the definition of 'amount in arrears' in terms of provisions of Section 121(c) of the Act of 2019. Learned counsel submitted that Section 125(1)(d) of the Act of 2019, disqualifies a declarant from being eligible if a show cause notice under indirect tax enactment for an erroneous refund or refund has been issued to it. Learned counsel would submit that the case of the petitioner is not where a show cause notice for an erroneous refund or refund has been issued rather, it is a case where an order in original has been passed, although, the show cause notice issued was for recovery of erroneous refund/refund. Learned counsel submitted that the designated committee could not have read 'show cause notice relating to erroneous refund/refund' as an issue relating to erroneous refund/refund and thus, the designated committee has seriously erred in rejecting the application preferred by the petitioner seeking benefits under the Scheme of 2019.;