TaxTMI 
TaxTMI 
TaxTMI 
2020 (3) TMI 811
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.... the Central Rules and Services Tax Act (CSGT), 2017, on the premise that there is no saving of the said provision under the CGST Act. Petitioner also assails the notices dated 06.11.2019 and 13.01.2020 issued by Respondent No. 2 requiring the Petitioner to provide several documents and records, on the ground that the same is without jurisdiction and authority of law. 4. The case of the Petitioner is that it is a company engaged in the business of providing freight forwarding services to its clients. It has offices across the country, including at Delhi, Gujarat, Haryana, Karnataka etc. For the purpose of service tax, the Petitioner had a centralized registration with the service tax department at Delhi. Petitioner states that it regularly paid taxes and filed service tax returns. 5. The Petitioner states that according to the Respondents, the impugned notice issued on 06.11.2019, was actually not served on the Petitioner. This notice has been filed along with the writ petition and the same reads as follows: "M/s Aargus Global Logistics Pct Ltd. (STC NO. AAACP3701AST001) 150, AGL Chambers Village Kapashera, New Delhi-110037. Subject: Intimation for verification of Financ....
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....d from 2014-15 (Oct-2014) to 2017-18 (June 2017)-reg. Sir, Please refer to this office letter of even no. 6397 dated 06/11/2019 (copy Enclosed) on the above subject vide which the financial records for service tax audit/Central Excise Audit were sought. In this regard, it is to inform that the same have not been received by this officer so far. It is, therefore, once again requested to furnish the requisite records within 5 working days. If the documents are not submitted within time, then penalty under Section 77 of the finance act 1994 read with section 174 (2)(e) of the Central Goods and Service Tax Act 2017 will be imposed. Encl. as above Sd/- Assistant Commissioner" 7. We may at this stage itself notice that though the first prayer of the Petitioner as stated hereinabove, is that Rule 5A of the Service Tax Rules, 1994 be declared to be in conflict with the provisions of the Finance Act, 1994 and beyond the rule making power of Respondent No. 1, there is no specific submission advanced in this regard. The feeble submission advanced by learned Senior Counsel for the Petitioner is that the rule making power does not specifically grant the power to the Central Governme....
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.... goods exported out of India under section 93A;] (hhh) the date for determination of rate of service tax and the place of provision of taxable service [under section 66C];] (i) provide for the amount to be paid for compounding and the manner of compounding of offences; (j) provide for the settlement of cases, in accordance with sections 31, 32 and 32A to 32P (both inclusive), in Chapter V of the Central Excise Act, 1944 (1 of 1944) as made applicable to service tax vide section 83.] (k)* imposition, on persons liable to pay service tax, for the proper levy and collection of the tax, of duty of furnishing information, keeping records and the manner in which such records shall be verified; (l) make provisions for withdrawal of facilities or imposition of restrictions (including restrictions on utilisation of CENVAT credit) on provider of taxable service or exporter, for dealing with evasion of tax or misuse of CENVAT credit; (m) authorisation of the Central Board of Excise and Customs or [Principal Chief Commissioners of Central Excise or] Chief Commissioners of Central Excise to issue instructions, for any incidental or supplemental matters for the implementation of the ....
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....aid officer or the audit party or the cost accountant or chartered accountant, as the case may be." 9. From Section 94 of the Finance Act, 1994 it would be seen that the Central Government has been empowered to make Rules for carrying out the provision of Chapter 5 of the Finance Act, 1994, which contains the provisions in relation to levy of service tax. Therefore, the Central Government is empowered to make rules with a view to enforce and recover service tax. Sub-Section (2) of Section 94 opens with the words "In particular, and without prejudice to the generality of the foregoing power....". 10. The specific aspects in respect of which the Rules may be framed as enumerated in clauses (a) to (m) of Section 94(2) do not take away the general and omnibus power to make Rules conferred by the opening words of Section 94 (2). The Parliament consciously while enumerating the specific matters in respect of which Rules may be framed, preserved the general Rule making power of the Central Government. The only statutory limitation placed on the said Rule making power is that the Rule(s) should be framed for the purpose of enforcing the service tax regime. Therefore, the power of the Cen....
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....ch read as follows: "173. Save as otherwise provided in this Act, Chapter V of the Finance Act, 1994 shall be omitted. 174. (1) Save as otherwise provided in this Act, on and from the date of commencement of this Act, the Central Excise Act, 1944 (except as respects goods included in entry 84 of the Union List of the Seventh Schedule to the Constitution), the Medicinal and Toilet Preparations (Excise Duties) Act, 1955, the Additional Duties of Excise (Goods of Special Importance) Act, 1957, the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978, and the Central Excise Tariff Act, 1985 (hereafter referred to as the repealed Acts) are hereby repealed. (2) The repeal of the said Acts and the amendment of the Finance Act, 1994 (hereafter referred to as "such amendment" or "amended Act", as the case may be) to the extent mentioned in the sub-section (1) or section 173 shall not- (a) revive anything not in force or existing at the time of such amendment or repeal; or (b) affect the previous operation of the amended Act or repealed Acts and orders or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation, or liability acqui....
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.... fine, penalty, interest" which were due, or may become due even after the enactment of the CGST Act and the omission of Chapter V of the Finance Act, 1994. He submits that such "duty, tax, surcharge, fine, penalty, interest" could be only in respect of, and arising out of proceedings already initiated, and ongoing proceedings on the date of enactment of the CGST Act. In this regard, learned Senior Counsel for the Petitioner has laid special emphasis on the use of the words "in respect of the any such duty, tax, surcharge, penalty, fine, interest, right, privilege, obligation, liability, forfeiture or punishment, as aforesaid" contained in Clause (e), as also the words "and any such investigation, inquiry, verification......" used in the same clause. We cannot agree with this submission of learned Senior Counsel for the Petitioner. Clause (e) expressly empowers the Competent Authorities to initiate and institute even fresh proceedings under the omitted chapter V of the Finance Act, 1994 and the rules framed thereunder, despite the said omission by Section 173 of CGST Act. This is clear from the use of the expression "may be instituted, continued or enforced........." in Clause (e) ....
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.... statute book till the enforcement of the CGST Act. Secondly, even this Amendment of the Finance Act, 1994 (by Section 173 of the CGST Act) saves what was otherwise provided in the Act, which included what is provided in Section 174. Therefore, to the extent the provisions of Chapter V of the Finance Act, 1994 are saved, they do not stand omitted by amendment of the Finance Act, 1994. Thirdly, the Rules under Chapter V of the Finance Act, 1994, were framed, as noticed hereinabove, to carry out the provisions of Chapter V of the Finance Act, 1994. The rules are subordinate legislation and without the said Rules, the provisions of Chapter V of that Act itself could not be worked. The Service Tax Rules were framed under Chapter V of the Finance Act, 1994. Those rules are, therefore, saved by Clause (b) of Section 174 (2) which states that, inter alia, anything duly done under the Chapter V of the Finance Act, 1994 shall not be affected by the amendment of the Finance Act, 1994. Thus, the amendment of the Finance Act, 1994 does not affect the Service Tax Rules. Fourthly, Section 6 of the General Clauses Act which deals with "effect of repeal" reads as follows: "6. Effect of repeal. -....