2019 (11) TMI 1128

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.... petitioner and an opportunity of personal hearing. 2. The petitioner is a Public Limited Company engaged in the business of exploration and production of crude oil and natural gas. The petitioner was served with show cause notice dated 30.03.2016 by the second respondent, calling upon the petitioner to show cause to the first respondent as to why : "(i) the production of oil service provided by HOEC as discussed above should not be classified as "Mining Services" under Section 65 (105) (zzzy) of the Finance Act, 1994 or the taxable service, as the case may be; (ii) Service Tax of Rs. 25,28,69,990/- (Service Tax of Rs. 24,55,04,845/-, Education of Rs. 49,10,098/- and Secondary Higher Education Cess of Rs. 24,55,047/-) o....

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.... classified as "Mining Services" under Section 65 (105) (zzzy) of the Finance Act, 1994 up to 30.06.2012 and as the taxable service from 01.07.2012. (ii) I confirm the demand of Rs. 25,28,69,990/- (Rupees Twenty Five Crore Twenty Eight Lakh Sixty Nine Thousand Nine Hundred And Ninety Only) [Service Tax of Rs. 24,55,04,845/-, Education Cess of Rs. 49,10,098/- and Secondary Higher Education Cess of Rs. 24,55,047/-] for the period from 2010-11 to 2014-15 under Section 73(1) of the Finance Act 1994 read with Section 73(2) of the Finance Act, 1994. (iii) I order that the service of Survey and Exploration provided by the assessee be classified as "Survey and Exploration Services" under Section 65 (104a) read with Section 65 (105....

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....n Service, this being a duplication of demand under Mining Service." 4. Challenging the above said order, the present writ petition is filed mainly by contending that the first respondent, before passing the impugned order, failed to consider two Circulars issued on 12.02.2018 and 05.03.2018 in Circular No.32/06/2018 - GST and Circular No.35/2018 - GST, respectively. 5. According to the petitioner, had the Adjudicating Authority considered those two Circulars which are in favour of the petitioner, he would have not passed the impugned Order in Original by treating the petitioner as a Service Provider and fixing the tax liability on the petitioner. Therefore, it is contended before this Court that the Adjudicating Authority has to c....

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....t specifically referred to the Circulars in Nos.32/06/2018 - GST and 35/2018 - GST dated 12.02.2018 and 05.03.2018 respectively, relied on by the petitioner, in fact it has dealt with the effect of such Circulars and decided the matter after considering the facts and circumstances of the present case and accordingly, the Adjudicating Authority has come to the conclusion that the petitioner is a Service Provider, liable to pay service tax. Therefore, the learned counsel contended that all the factual contentions raised by the petitioner before this Court, based on the above two Circulars, is a matter which needs to be considered and decided only by the next fact finding authority viz., the Appellate Authority and therefore, the petitioner is....

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....r as a Service Provider. No doubt, those two Circulars were issued before the date of the impugned order. At the same time, the effect of those two Circulars and consequences thereof, in the case of the petitioner, is certainly a factual aspect of the matter which needs to be considered and decided only by a next fact finding authority viz., the Appellate Authority, even assuming that the Adjudicating Authority has not considered those two Circulars which according to the petitioner are in their favour. There is no dispute to the fact that as against the present order passed by the first respondent, a statutory appellate remedy is available before the CESTAT and therefore, all the factual contentions raised by the petitioner by relying on t....