TaxTMI 
TaxTMI 
2020 (10) TMI 1107
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.... have preferred an appeal under Section 85 of the Act, challenging the order(s) of the appropriate authority constituted under the Act? (d)Whether the order dated 02.04.2018 passed by the Joint Commissioner, CGST & Central Excise Patna-I can be said to be perverse, illegal, or erroneous, and warranting interference by this Court? Briefly stated facts are as under:- Petitioner, who is a service provider, is engaged in the business of providing washing and cleaning bedrolls and linen. East Central Railway, the service recipient, ordered specific works to the petitioner whereby linen and bedrolls used by the passengers undertaking journey in different trains were required to be washed and cleaned. An investigation carried out by the Anti-Evasion Branch of Central Excise & Service Tax, Headquarters, Patna revealed that (a) the petitioner was not registered under the Act; (b) not paid any amount of tax; (c) had received from the railways an amount of Rs. 54,17,254/- in the financial year 2011-12 and Rs. 1195,26,312/- in the financial year 2012-13; (d) such payment was towards the services classified as dry cleaning/washing of the bedrolls provided to the passengers ....
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....ith the statutory provisions. (e) Alternatively, the obligation of the service provider is only on actual receipt of the amount of tax and not otherwise. Before us, specific facts are not disputed.- (a) the petitioner had executed the work allotted by the Railways; (b) concerning that, petitioner received the amounts enumerated above for the financial year 2011-12 and 2012-13. We proceed to examine the provisions of Chapter V and VA of the Act. Section 65 contains the definitions. Sub-section (44) of the said section defines "service", relevant portion thereof is extracted as under: "(44) "service" means any activity carried out by a person for another for consideration, and includes a declared service, but shall not include- (a) an activity which constitutes merely,- (i) a transfer of title in goods or immovable property, by way of sale, gift or in any other manner; or (ia) such transfer, delivery or supply of any goods which is deemed to be a sale within the meaning of clause (29A) of article 366 of the Constitution; or (ii) a transaction in money or actionable claim; ......... 'Explanation 2. - F....
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....ors to specify services falling in the negative list. Section 68 makes every service provider liable to pay service tax at the specified rates, in such manner and within such period as may be prescribed and Section 69, mandates such person to apply for and get registered with the appropriate authority. The relevant provisions read as under: "68. Payment of service tax. - (1) Every person providing taxable service to any person shall pay service tax at the rate specified in section [66B] in such manner and within such period as may be prescribed. (2). Notwithstanding anything contained in sub-section (1), in respect of [such taxable services as may be notified] by the Central Government in the Official Gazette, the service tax thereon shall be paid by such person and in such manner as may be prescribed at the rate specified in section [66B] and all the provisions of this Chapter shall apply to such person as if he is the person liable for paying the service tax in relation to such service.] Provided that the Central Government may notify the service and the extent of service tax which shall be payable by such person and the provisions of this C....
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.... cases including, where non-deposit of credit of tax is for unjustifiable reasons. Section 85 provides a mechanism for an intradepartmental appeal. Any order passed by an Adjudicating Authority subordinate to the Principal Commissioner or Commissioner of Central Excise has a right to appeal to the Commissioner of Central Excise (Appeals). Equally, by virtue of Section 86, in certain specified cases, an appeal shall lie before the Appellate Tribunal. The Service Tax Rules, 1994 so framed under the Act provides for the mechanism for registration (Rule-4); payment of Service Tax (Rule-6) and filing of returns (Rule-7). The Hon'ble Apex Court in Laghu Udyog Bharati and another Vs. Union of India and others, (1999) 6 SCC 418, while minutely examining and interpreting statutory provisions with which we are concerned observed as under:- "9. ....... Of course, it may be an indirect tax; it may be possible that the same is passed on to the customer but as far as the levy and assessment are concerned it is the person rendering the service who alone can be regarded as an assessee and not the customer. This is the only way in which the provisions can be read harmoniously."....
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....component of tax with receipt to the services so rendered. The Act does not stipulate payment only on receipt thereof. As already observed, petitioner has not registered itself under the statute; nor paid any tax. Coming to the first submission as to whether the impugned order suffers from perversity or not, having given our thoughtful consideration, we find that it does not. The order passed was after affording an opportunity of filing response; all contentions allowed to be raised, considered and dealt with; fair opportunity of hearing afforded; reasons for assessing the liability stands assigned; statutory provisions correctly appreciated and applied to the attending facts and circumstances. There is no violation of principles of natural justice. There is no misconstruction or misappreciation of fact or misapplication of the law. Petitioner has been providing service to the Government authority. The service does not fall within the specified services contained in the negative list. The amount received from the Railway Authorities is not in dispute, and the incidence of taxation stands correctly determined. One finds that with impunity petitioner continued to evade....