TaxTMI 
TaxTMI 
TaxTMI 
2006 (2) TMI 43
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....umers in general that every person providing taxable service to any person shall pay service tax at the rates specified in section 65 (1) of the Finance Act in such manner and within such period as may be prescribed under the said section; that a person or firm, who renders taxable service has to pay service tax but in practice the second respondent has simply shifted the burden of liability of paying the a tax to customers or the consumers of service, which is a gross violation of the provisions of Finance Act, 1994 and its Rules, that in other words, only the service provider are liable to party tax not the service beneficiary; that the second respondent's various agents or departments ever since the time of introduction of service tax ar....
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....36B, 37A, 37B, 37C, 37O, and 40 of the Central Excise Act; that Section 12A and 12B of Central Excise Act 1994, deals with the amount of duty and the incidents o duty passing on to the buyer respectively; that on reading of these two provisions, it clearly establish the fact that incident of Service Tax falls on the user, consumer, customer or subscriber as the case may be; that the legal duty is cast upon the provider of service namely BSNL to collect 10.2°/ of service tax from the customers and pay the service tax amount with the Central Excise department; that Section 12B clearly speaks about the presumption that the incidence of duty has been passed on the user, consumer or sub scriber; that the Honorable Supreme Court in the decision ....
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....: Every person providing taxable service to any person shall pay Service Tax at the rate specified in Section 66 in such manner and within such period as may be prescribed. Provided that: (i) In relation to services by a clearing and forwarding agent, every person who engages a clearing and forwarding agent and by whom remuneration or commission (by whatever name called) is paid for such service to the said agent for the period commencing on and from the 16th day of July, 1997 and ending with the 16th day of October 1998; or (ii) In relation to services provided by goods transport operator, every person who pays or is liable to pay the freight either himself or through his agent for the transportation of goods by road in a goods carriage....
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.... the amount of such duty which will form part of the price at which such goods are to be sold. 12.5. Presumption that the incidence of duty has been passed on to the buyer - Every person who has paid the duty of excise on any goods under this Act shall, unless the contrary is proved by him, be deemed to have passed on the full incidence of such duty to the buyer of such goods" 5. The case of the writ petitioner is that a person or a firm, who renders taxable service has to pay service tax prescribed at the rate fixed from time to time, but the second respondent has simply shifted the burden of liability of paying tax to the customers or the consumers of services, which is a gross violation of the provisions of Finance Act 1994 and its Rul....
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....n was also extracted in the counter of the respondent, which is extracted above. 7. It is an admitted fact that pursuant to the judgment rendered by the Honorable Supreme Court in Laghu Udyog Bharati's case stated supra, amendment to Section 68 was made and also the defects and lacunas pointed out by the Honorable Supreme Court were rectified by the parliament by subsequent amendments. 8. The case of the petitioner is that the first respondent, Stead of paying the service tax from their pocket passing on the incidence to the consumer or beneficiary, hence, the judgment rendered by the Honorable Supreme Court in Laghu Udyog Bharati's case no way useful to the respondents. 9. The provider of service is an assessee under Section 65 of the F....