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of <h1>Court Invalidates Service Tax Rule Making Recipients Liable, Deems It Unconstitutional</h1> <h3>OCL India Limited and another Versus Union of India and others</h3> OCL India Limited and another Versus Union of India and others - [2019] 65 G S.T.R. 302 (Ori), 2019 (30) G.S.T.L. 467 (Ori.) Issues Involved:1. Constitutional validity of sub-Clause (iv) of Rule 2 (1)(d) of Service Tax Rules, 1994.2. Legality of the show-cause notice issued under the said rule.Issue-wise Detailed Analysis:1. Constitutional Validity of sub-Clause (iv) of Rule 2 (1)(d) of Service Tax Rules, 1994:The petitioners challenged the constitutional validity of sub-Clause (iv) of Rule 2 (1)(d) of Service Tax Rules, 1994, which was inserted via Notification No.12/2002-Service Tax, dated 01.08.2002. This rule makes the recipient of a taxable service in India liable to pay service tax if the service provider is a non-resident or operates from outside India without any office in India. The petitioners argued that this provision is ultra vires the Constitution and the Finance Act, 1994, which stipulates that the service tax liability lies with the service provider.The petitioners relied on the Supreme Court judgment in Laghu Udyog Bharati v. Union of India, which clarified that the service tax is levied on the person providing the service, not the recipient. The Bombay High Court's decision in Indian National Shipowners Association v. Union of India was also cited, which held that Rule 2 (1)(d)(iv) is contrary to the provisions of Section 68 of the Finance Act and invalidated the rule for making the recipient liable for service tax.The court concluded that the rule empowering authorities to collect service tax from the recipient of services is not in conformity with the law. It held that Rule 2 (1)(d)(iv) of the Service Tax Rules, 1994, is ultra vires the provisions of the Finance Act and the Constitution, declaring it bad in law.2. Legality of the Show-Cause Notice Issued Under the Said Rule:The petitioners also sought to set aside the show-cause notice dated 10.01.2005 issued by the Assistant Commissioner, Central Excise & Customs, Rourkela-II Division, pursuant to the impugned notification. The notice demanded service tax from the petitioner-company for engineering plans, drawings, and technical documents imported from M/s. Loesche GmbH of Germany.The court noted that the show-cause notice was issued based on the invalidated rule. Given the declaration that Rule 2 (1)(d)(iv) is ultra vires, the show-cause notice cannot stand the scrutiny of law. Consequently, the court set aside the show-cause notice.Conclusion:The court allowed the writ application, declaring Rule 2 (1)(d)(iv) of the Service Tax Rules, 1994, ultra vires and invalid. It also set aside the show-cause notice issued under the said rule. No order as to costs was made.
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