JUDGMENT AND ORDER (ORAL)

The challenge instituted in this petition has filed under Article 226 of the Constitution of India pertains to an order dated 16.02.2022 passed by the Assistant Commissioner, GST & Central Excise, Guwahati-I Division and the subsequent order dated 06.12.2022 passed by the Commissioner (Appeals), CGST whereby the appeal has been rejected.

2. As per the facts projected, the petitioner is a Proprietor of M/s Kooltech Systems (Assam) and has been provided the status of a service provider and the relevant period in this case is the financial year 2014-2015. On 07.11.2019, a demand-cum-Show Cause Notice was issued under Section 66 B, 68, 69 and 70 of the Finance Act, 1994 read with Rules 4, 5, 6 & 7 of the Service Tax Rules, 1994 with the allegation that services worth Rs.23,47,386/- was assessed for the concerned period and accordingly a demand of Rs.2,90,137/- including cess was made. The petitioner had submitted a reply on 27.12.2019 whereby it had accepted the demand and agreed to pay the same. However, the petitioner had also requested to be given the benefit of the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 (SVLDRS). Accordingly, the petitioner had filed SVLDRS-1, receipt of which was acknowledged on 31.12.2019. Consequently, the Designated Committee, after consideration of the matter had issued SVLDRS-3 and determined the amount payable as Rs.1,16,054.80 which was paid on 20.01.2020. After such payment, SVLDRS-4 which is the Discharge Certificate was issued on 04.02.2020. According to the petitioner, after issuance of such Discharge Certificate which is not in dispute, the matter had come to a conclusion. However, the Assistant- Commissioner had passed an order in original on 16.02.2022 ex-parte and confirmed tax of Rs. 2,90,137/- along with penalty under Sections 77 and 78. It was recorded in the said order that the petitioner had failed to respond to the show cause notice.

3. Having come to know about the aforesaid development, the petitioner had submitted a compliance report on 05.04.2022 and had reiterated the undertaking not to prefer any appeal so far as the settlement of the matter vide issuance of SVLDRS-4. Accordingly, an appeal was filed before the Commissioner (Appeals) putting into challenge the order in original dated 16.02.2022 which was however dismissed on 06.12.2022. The primary ground of dismissal of the said appeal was that the SVLDRS was not applicable as the show cause notice in the instant case was issued on 07.11.2019 which was after the prescribed date of 30.06.2019. The appellate authority had relied upon the explanation to Rule 3 (2) of the Rules of 2019. It is the aforesaid actions which are the subject matter of challenge in the present writ petition.

4. I have heard Dr. A. Saraf, learned Senior Counsel assisted by Shri A. Kaushik, learned counsel. I have also heard Shri S. C. Keyal, learned Senior Standing Counsel, CGST.

5. Dr. Saraf, the learned Senior Counsel for the petitioner has submitted that though a show cause notice was initiated on 07.11.2019, the petitioner, vide a written application dated 27.12.2019 had requested benefit of the SVLDRS, 2019. The said request was duly considered and after completion of all the formalities, the amount was determined which was paid leading to issuance of the Discharge Certificate (SVLDRS-4) on 04.02.2020. He submits that after issuance of such Discharge Certificate, the matter could not have been re- opened as the same is not authorised in law. He has submitted that though as a matter of fact, no specific reply was filed qua the show cause notice, a communication was issued on 27.12.2019 whereby the aspect that the petitioner wished to avail the benefit of the Scheme was clearly mentioned. Nonetheless, the matter was proceeded ex parte and the matter in original was passed. He has submitted that in the said order, there is no reference to the aspect of issuance of the Discharge Certificate dated 04.02.2020