AI Drafter 
TaxTMI 
TaxTMI 
2022 (12) TMI 1336
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....2, 6653 & 7187 of 2021 AND W.P.Nos.67, 276, 423, 816, 1150, 1287, 5053, 279, 424, 11064, 11069, 11737, 17259, 811, 1155 & 1281 of 2022 AND W.P.(MD) Nos.14918, 14937, 5158, 14919 & 14938 of 2018 AND W.P. (MD) Nos.14855, 15134, 15152, 16034, 16045, 16060, 18353, 18948, 18958, 19517, 18954, 13912, 13915, 13925, 13929, 13932, 13920, 13935, 13934, 13940, 15302 & 18540 of 2020 AND W.P. (MD) Nos.20076, 7243, 9210, 9213, 9216, 9218, 9220, 1783, 2630, 2635, 2637, 3682, 6222, 6228, 6229, 6630, 6234, 6238, 1087, 1119, 1145, 1092, 1100, 1112, 1130, 1633, 1671, 14686, 14687, 20823, 22019, 16495, 16986, 10520, 4777, 1088, 20111, 17364, 3672, 10647, 10649, 11051, 9647, 10480, 1867, 5023, 13188, 14366, 16055, 17923, 21648, 21649, 21650, 21651, 22811, 22812, 22813, 22814, 22974, 22975, 23020 & 23035 of 2021 AND W.P. (MD) Nos.5225, 15108, 15109, 14734, 13121, 12757, 1392, 4357, 4350, 3136, 5108, 12877, 11792, 12562, 7386, 7538, 7767, 1391, 5326, 5327, 5328, 5329, 5330, 5331, 5332, 6597, 8852, 8853, 9216, 5457, 5458, 5459, 5460, 3675, 2087, 11277, 6274, 6275, 5584, 2127, 2152, 2153, 4295, 4296, 5753, 9142 & 1040 of 2022 & W.M.P.Nos.1485, 20616, 20617, 34642, 34652, 39959, 22172, 22173 & 37850 of 2018....
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.... C.Saravanan For the P1, P2 & P4 : Mr.S.Rajasekar For the R1 & R2 : M/s.R.Hemalatha Senior Standing Counsel For the R3 : Mr.V.Ravi Special Government Pleader COMMON ORDER S.VAIDYANATHAN, J. And C.SARAVANAN, J. By this common, all these 226 Writ Petitions are being disposed of. These Writ Petitions are categorized as follows:- Table No : 1 Challenge to Notification No.6/2015-ST, dated 01.03.2015 Sl. No. W.P.No. 1 W.P.No.21170 of 2019 2 W.P.No.26523 of 2019 3 W.P.No.26779 of 2019 4 W.P.No.28039 of 2019 5 W.P.No.28046 of 2019 6 W.P.No.28043 of 2019 7 W.P.No.28042 of 2019 8 W.P.No.28930 of 2019 9 W.P.No.28937 of 2019 10 W.P.No.9114 of 2020 11 W.P.No.816 of 2022 12 W.P.No.1150 of 2022 13 W.P.No.1287 of 2022 14 W.P.No.5053 of 2022 15 W.P.(MD) No.5225 of 2022 16 W.P.(MD) No.20076 of 2021 17 W.P.(MD) No.15108 of 2022 18 W.P.(MD) No.15109 of 2022 19 W.P.No.18424 of 2020 20 W.P.(MD) No.14734 of 2022 21 W.P.(MD) No.13121 of 2022 22 W.P.(MD) No.12757 of 2022 23 W.P.No.8213 of 2021 24 W.P.No.8453 of 2021 25 W....
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....7 of 2022 97 W.P.No.276 of 2022 98 W.P.No.423 of 2022 99 W.P.No.6717 of 2021 100 W.P.No.6722 of 2021 101 W.P.No.6725 of 2021 102 W.P.No.6867 of 2021 103 W.P.No.6966 of 2021 104 W.P.No.7011 of 2021 105 W.P.No.1185 of 2018 106 W.P.No.24996 of 2019 107 W.P.No.17359 of 2018 108 W.P.No.3627 of 2021 109 W.P.No.4114 of 2021 110 W.P.No.6498 of 2021 111 W.P.No.6652 of 2021 112 W.P.No.6775 of 2021 113 W.P.No.6658 of 2021 114 W.P.No.7179 of 2021 115 W.P.(MD) No.14855 of 2020 116 W.P.No.9084 of 2021 Table No : 2 Challenge to Show Cause Notice / Notice Sl. No. W.P.No. Date of SCN / Not. No. of Show Cause Notice 1 W.P.No.18810 of 2018 * 04.12.2017 C.No.IV/06/31/2017 - HPU 2 W.P.No.811 of 2022 20.10.2021 SCN.No.05/2021-ST 3 W.P.No.1155 of 2022 18.10.2021 SCN.No.13/2021-ST 4 W.P.No.1281 of 2022 20.10.2021 SCN.No.40/2021-ST 5 W.P.No.8217 of 2021 28.12.2020 SCN.No.57/2020-ST 6 W.P.No.8452 of 2021 24.12.2020 SCN.No.09/2020-ST 7 W.P.No.8879 of 2021 28.12.2020 SCN.No.12/2020-ST ....
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....;O.I.O.No.34/2022-ST 7 W.P.(MD) No.5459 of 2022 21.01.2022 O.I.O.No.62/2022-ST 8 W.P.(MD) No.5460 of 2022 03.01.2022 O.I.O.No.23/2022-ST 9 W.P.(MD) No.17364 of 2021 17.02.2021 O.I.O.No.09/2021-ST 10 W.P.No.16710 of 2021 24.10.2018 O.I.O.No.20/2018-ST 11 W.P.(MD) No.3675 of 2022 12.01.2022 O.I.O.No.12/2022-ST 12 W.P.(MD) No.2087 of 2022 12.01.2022 O.I.O.No.08/2022-ST 13 W.P.(MD) No.11277 of 2022 11.03.2022 O.I.O.No.37/2022-ST 14 W.P.(MD) No.6274 of 2022 08.03.2022 O.I.O.No.104/2022-ST 15 W.P.(MD) No.6275 of 2022 09.03.2022 O.I.O.No.110/2022-ST 16 W.P.(MD) No.3672 of 2021 29.01.2021 O.I.O.No.03/2021-ST 17 W.P.No.18185 of 2021 26.09.2021 O.I.O.No.04/2021-ST 18 W.P.No.25217 of 2021 10.06.2021 O.I.O.No.08/2022-ST Table No : 4 Challenge to Notification No.6, dated 01.03.2015 & to Show Cause Notice / Notice Sl. No. W.P.No. Date of SCN / Not. No. of Show Cause Notice 1 W.P.No.4....
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.... No.23035 of 2021 31.12.2020 SCN.No.135/2020-ST 36 W.P. (MD) No.1040 of 2022 28.04.2021 SCN.No.09/2021-ST Table No : 5 Challenge to Notification No.6, dated 01.03.2015 & to Order - in - Original Sl. No. W.P.No. Date of O.I.O. No. of Order in Original 1 W.P.(MD) No.5326 of 2022 03.01.2022 O.I.O.No.18/2022-ST 2 W.P.(MD) No.5327 of 2022 03.01.2022 O.I.O.No.11/2022-ST 3 W.P. (MD) No.5328 of 2022 06.01.2022 O.I.O.No.28/2022-ST 4 W.P. (MD) No.5329 of 2022 06.01.2022 O.I.O.No.36/2022-ST 5 W.P. (MD) No.5330 of 2022 10.01.2022 O.I.O.No.38/2022-ST 6 W.P. (MD) No.5331 of 2022 12.01.2022 O.I.O.No.11/2022-ST 7 W.P. (MD) No.5332 of 2022 21.01.2022 O.I.O.No.58/2022-ST 8 W.P. (MD) No.16495 of 2021 04.08.2021 O.I.O.No.15/2021-ST 9 W.P. (MD) No.16986 of 2021 22.01.2022 O.I.O.No.07/2022-ST 10 W.P. (MD) No.10520 of 2021 16.04.2021 O.I.O.No.09/2021-ST 11 W.P. (MD) No.6597 of 2022 09.11.2021 O.I.O.No.22/2021-ST 12 W.P. (MD) No.8852 of 2022 06.07.2022 O.I.O.No.06/2022-ST 13 W.P. (....
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.... engaged by the Public Works Department of State & Central Government for construction of school buildings and etc. Ther services provided by the respective petitioners according to them were exempted from payment of service tax in terms of Entry 12(a), (c) & (f) in Mega Exemption Notification No.25/2012-Service Tax, dated 20.06.2012. Relevant portion of the Mega Exemption Notification No.25/2012-Service Tax, dated 20.06.2012, under which, exemption was claimed by the respective petitioners, read as under:- 12. Services provided to the Government, a local authority or a governmental authority by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation, or alteration of - (a)a civil structure or any other original works meant predominantly for use other than for commerce, industry, or any other business or profession; (b) a historical monument, archaeological site or remains of national importance, archaeological excavation, or antiquity specified under the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958); (c) a structure meant predominantly for use as (i) an ....
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....e, renovation, or alteration of certain buildings as specified in the above Clauses (a), (b) and (c) to Entry 12A, on which appropriate stamp duty, where applicable, had been paid prior to such date. 6. Therefore, the petitioners have challenged the impugned Notification No.6/2015-Service Tax, dated 01.03.2015 seeking to levy service tax for such services provided to the State / Central Government, a Local Authority or a Governmental Authority under the contracts signed after issue of the impugned Notification No.6/2015-Service Tax, dated 01.03.2015. The case of the petitioners, in particular, is that the service tax ought not to have been imposed as the burden of collection has been fastened on the respective petitioners even though the amount has to be collected from the Government and remitted to the Government. 7. In exercise of power conferred under Section 93(1) of the Finance Act, 1994 (Chapter V of the Finance Act, 1994), the Government had granted exemption in the public interest vide Mega Exemption Notification No.25/2012-Service Tax, dated 20.06.2012. The withdrawal of exemption vide the impugned Notification No.6/2015-Service Tax, dated 01.03.2015 should also be i....
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....ced reliance on the following decisions:- i. W.P.I.L. Ltd. Vs. Commissioner of Central Excise, Meerut, U.P., 2005 (181) E.L.T. 359 (S.C.) ii. India Cements Ltd. Vs. Commissioner of Central Excise, Trichy-I, 2013 (297) E.L.T. 508 (Mad.) iii. Vadilal Chemicals Ltd. Vs. State of Andhra Pradesh, 2005 (192) E.L.T. 33 (SC) iv. Uniworth Textiles Ltd. Vs. Commissioner of Central Excise, Raipur, 2013 (288) E.L.T. 161 (S.C.) v. Anand Nishikawa Co. Ltd. Vs. Commissioner of Central Excise, Meerut, 2005 (188) E.L.T. 149 (S.C.) vi. Ugam Chand Bhandari Vs. Commissioner of Central Excise, Madras, 2004 (167) E.L.T. 491 (S.C.) vii.Gammon India Ltd. Vs. Commissioner of Central Excise, Goa, 2002 (146) E.L.T. 173 (Tri. - Mumbai) viii.Commissioner Vs. Gammon India Ltd., 2002 (146) E.L.T. A313 (S.C.) ix. Cement Marketing Corporation of India Vs. Assistant Commissioner of Sales Tax, 1980 (6) E.L.T. 295 (S.C.) 10. It is submitted that under somewhat similar circumstances dealing with the exemption which was withdrawn, the Hon'ble Suprme Court in W.P.I.L. Ltd. case referred to supra, held that such exemptions are clarifi....
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....ese cases, it is the Government which is providing services which are falling in the negative list under Section 66D of the Finance Act, 1944 as defined in Section 65B of the Finance Act, 1944. Therefore, no useful purpose will be served by passing the incidence of the tax to Government which is providing services in the negative list. 15. Mr.S.Muthuvenkatraman, the learned counsel for the petitioners in W.P.No.6493 of 2021 and others submitted that some of the petitioners who have rendered services to the persons for whom the services were rendered were non Government Organisations and therefore submits that insofar as those cases are concerned, the petitioners may be relegated to defend their case before the adjudicating authority. 16. Mr.S.Rajasekar, the learned counsel for the petitioners in W.P.No.24996 of 2019 and others, has drawn attention to the decision of the Hon'ble Supreme Court in Dai-Ichi Karkaria Ltd. Vs. Union of India and others, (2000) 4 SCC 57. The main attack is on the public interest involving in withdrawal of exemption. It is submitted that there are no records to substantiate if any public interest at all was involved while issuing the impugned Not....
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....of the negative list in Section 66D read with definition of negative list in Section 65B(34) of the Finance Act, 1944. 18. It is submitted that no useful purpose is served by making the petitioners liable to pay service tax as the service tax is a destinationbased tax and ultimately service tax is payable by collecting the same from the recipients of the services. It is submitted that the requirement to collect the service tax from the Government Departments and to remit the same to the Government for whom the work was being executed was arbitrary and therefore liable to be declared as ultravirus. 19. It is submitted that no useful purpose will be served by making the contractors collect the service tax and pay the same to the exchequer. Instead, the amount could have been directed to be collected from the recipients and therefore, the service tax for the services provided by the petitioners should be exempted as the service provided by the recipients is in the negative list in Section 66D of the Finance Act, 1944. 20. It is submitted that the services provided to the various Government agencies are also on a non-commercial basis and therefore services provided to such Gov....
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....use (1) shall prevent the Union from imposing, or authorising the imposition of, any tax to such extent, if any, as Parliament may by law provide in respect of a trade or business of any kind carried on by, or on behalf of, the Government of a State, or any operations connected therewith, or any property used or occupied for the purposes of such trade or business, or any income accruing or arising in connection therewith. (3)Nothing in clause (2) shall apply to any trade or business, or to any class of trade or business, which Parliament may by law declare to be incidental to the ordinary functions of Government. 25. It is submitted that the negative list in Section 66D of the Finance Act was in consonance with Article 289(2) of the Constitution of India and therefore, the demand of service tax is contrary to Article 289 of the Constitution of India also. 26. It is further submitted that no counter affidavit has been filed by the Union of India and only the counter affidavit has been filed by the Commissioner on strength of Letter dated 06.12.2019 bearing reference F.No.280/01/2019-CX.8A of the Central Board of Indirect Taxes and Customs (Legal Cell). It is submitted....
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....tate that whereas equality before law is a negative concept, the equal protection of the law has positive content. The early judgments of this Court referred to the "discrimination" aspect of Article 14, and evolved a rule by which subjects could be classified. If the classification was "intelligible" having regard to the object sought to be achieved, it would pass muster under Article 14's anti-discrimination aspect. Again, Subba Rao, J., dissenting, in Lachhman Dass v. State of Punjab [Lachhman Dass v. State of Punjab, (1963) 2 SCR 353 : AIR 1963 SC 222] , SCR at p. 395, warned that: (AIR p. 240, para 50) "50. ... Overemphasis on the doctrine of classification or an anxious and sustained attempt to discover some basis for classification may gradually and imperceptibly deprive the Article of its glorious content." He referred to the doctrine of classification as a "subsidiary rule" evolved by courts to give practical content to the said Article. 63. In the pre-1974 era, the judgments of this Court did refer to the "rule of law" or "positive" aspect of Article 14, the concomitant of which is that if an action is found to be arbitrary and, therefore, u....
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....bly related to the object of the law. He went on to add: (Indira Nehru Gandhi case [Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1] , SCC p. 258, para 681) "681. It follows that clauses (4) and (5) of Article 329-A are arbitrary and are calculated to damage or destroy the rule of law. Imperfections of language hinder a precise definition of the rule of law as of the definition of "law" itself. And the constitutional law of 1975 has undergone many changes since A.V. Dicey, the great expounder of the rule of law, delivered his lectures as Vinerian Professor of English law at Oxford, which were published in 1885 under the title, "Introduction to the Study of the Law of the Constitution". But so much, I suppose, can be said with reasonable certainty that the rule of law means that the exercise of powers of Government shall be conditioned by law and that subject to the exceptions to the doctrine of equality, no one shall be exposed to the arbitrary will of the Government. Dicey gave three meanings to rule of law: Absence of arbitrary power, equality before the law or the equal subjection of all classes to the ordinary law of the land administered by ordinary law courts and ....
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.... essence of the rule of law. 67. We now come to the development of the doctrine of arbitrariness and its application to State action as a distinct doctrine on which State action may be struck down as being violative of the rule of law contained in Article 14. In a significant passage, Bhagwati, J., in E.P. Royappa v. State of T.N. [E.P. Royappa v. State of T.N., (1974) 4 SCC 3 : 1974 SCC (L&S) 165] stated: (SCC p. 38, para 85) "85. The last two grounds of challenge may be taken up together for consideration. Though we have formulated the third ground of challenge as a distinct and separate ground, it is really in substance and effect merely an aspect of the second ground based on violation of Articles 14 and 16. Article 16 embodies the fundamental guarantee that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Though enacted as a distinct and independent fundamental right because of its great importance as a principle ensuring equality of opportunity in public employment which is so vital to the building up of the new classless egalitarian society envisaged in the Constitution, ....
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....various fundamental rights must be read together and must overlap and fertilise each other, Bhagwati, J., further amplified this doctrine as follows: (SCC pp. 283-84, para 7) "The nature and requirement of the procedure under Article 21 7. Now, the question immediately arises as to what is the requirement of Article 14: what is the content and reach of the great equalising principle enunciated in this article? There can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach. No attempt should be made to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. We must reiterate here what was pointed out by the majority in E.P. Royappa v. State of T.N. [E.P. Royappa v. State of T.N., (1974) 4 SCC 3 : 1974 SCC (L&S) 165] , namely, that: (SCC p. 38, para 85) '85. ... From a positivistic point of view....
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....ed in D.S. Nakara v. Union of India [D.S. Nakara v. Union of India, (1983) 1 SCC 305 : 1983 SCC (L&S) 145]. In Maneka Gandhi v. Union of India [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] it was observed that Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. It is thus too late in the day to contend that an executive action shown to be arbitrary is not either judicially reviewable or within the reach of Article 14." The same view was reiterated in Babita Prasad v. State of Bihar [Babita Prasad v. State of Bihar, 1993 Supp (3) SCC 268 : 1993 SCC (L&S) 1076] , SCC at p. 285, para 3 70.That the arbitrariness doctrine contained in Article 14 would apply to negate legislation, subordinate legislation and executive action is clear from a celebrated passage in Ajay Hasia v. Khalid Mujib Sehravardi [Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 : 1981 SCC (L&S) 258] : (SCC pp. 740-41, para 16) "16. ... The true scope and ambit of Article 14 has been the subject-matter of numerous decisions and it is not necessary to make any detailed reference to them. It is sufficient to state that the content an....
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....ct which was till then lying latent and submerged in the few simple but pregnant words of Article 14 was explored and brought to light in Royappa case [E.P. Royappa v. State of T.N., (1974) 4 SCC 3 : 1974 SCC (L&S) 165] and it was reaffirmed and elaborated by this Court in Maneka Gandhi v. Union of India [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] where this Court again speaking through one of us (Bhagwati, J.) observed: (SCC pp. 283-84, para 7) '7. Now the question immediately arises as to what is the requirement of Article 14: what is the content and reach of the great equalising principle enunciated in this article? There can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach. No attempt should be made to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. ... Article 14 strikes at arbitrarines....
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.... letter dated 30-4-2012. The sanction letter of 27-4-2012 issued by the Government of India conveying sanction for hiring of the lease premises in the present case to the Director General, Indian Coast Guard, specifically states: "... The registration charges, stamp duty, service taxes, etc. (if applicable) is the liability of the lessee...." 35. The letter dated 30-4-2012, written by the Deputy Inspector General, Chief Staff Officer, to the respondent, in turn, in Para 3(c) reiterated the same position as that of the sanction letter. The learned Single Judge in dealing with the letter dated 30-4- 2012 has held: (Bengal Shrachi Housing case [Bengal Shrachi Housing Dev. Ltd. v. Union of India, 2014 SCC OnLine Cal 10569 : AIR 2014 Cal 145] , SCC OnLine Cal para 12) "12. Turning to the facts of the present case, it appears that Clause 6 extracted supra delineated the respective obligations of the lessor and the lessees. The parties agreed that the rates and taxes primarily leviable upon the occupier would be paid by the Government. That the respondents were not oblivious of their obligation to bear service charge is reflected from the letter dated 30-4-2012.....
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....e Act arises when the taxable event occurs. They are then subject to the payment of duty as prevalent on the date of the entry of the goods. An exemption notification issued under Section 25 of the Act had the effect of suspending the collection of customs duty. It does not make items which are subject to levy of customs duty etc. as items not leviable to such duty. It only suspends the levy and collection of customs duty, etc., wholly or partially and subject to such conditions as may be laid down in the notification by the Government in "public interest". Such an exemption by its very nature is susceptible of being revoked or modified or subjected to other conditions. The supersession or revocation of an exemption notification in the "public interest" is an exercise of the statutory power of the State under the law itself as is obvious from the language of Section 25 of the Act. Under the General Clauses Act an authority which has the power to issue a notification has the undoubted power to rescind or modify the notification in a like manner. From the very nature of power of exemption granted to the Government under Section 25 of the Act, it follows that the same is with a view t....
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....mstances of the case, that it would be inequitable to hold the Government or the public authority to its promise, assurance or representation. After considering the earlier judgments on the issue, which have been heavily relied upon by the assessees, this Court has observed thus: (Kasinka Trading case [Kasinka Trading v. Union of India, (1995) 1 SCC 274] , SCC pp. 287-88, para 21) "21. The power to grant exemption from payment of duty, additional duty, etc. under the Act, as already noticed, flows from the provisions of Section 25(1) of the Act. The power to exempt includes the power to modify or withdraw the same. The liability to pay customs duty or additional duty under the Act arises when the taxable event occurs. They are then subject to the payment of duty as prevalent on the date of the entry of the goods. An exemption notification issued under Section 25 of the Act had the effect of suspending the collection of customs duty. It does not make items which are subject to levy of customs duty, etc. as items not leviable to such duty. It only suspends the levy and collection of customs duty, etc., wholly or partially and subject to such conditions as may be laid down in....
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....the case of a ship which is imported as an ocean-going vessel but is subsequently broken-up - from the actual date of import to the date of breaking-up by creating a legal fiction. Once it is held that it is open to the Central Government to impose such a condition or to create such a fiction, as the case may be, the condition or the fiction has to be given full effect to. It must be deemed that the ship is imported on the date it is broken-up (as explained herein above) and its value and rate of duty should be determined with reference to such date. By doing this, the duty chargeable by virtue of the exemption notification is not going beyond the statutory duty payable on such deemed date. 34. It is submitted that power to issue Notification includes power to amend. In this connection, a reference was made to the decision of the Hon'ble Supreme Court in Union of India Vs. Aflon Engineering Corporation, (2001) 10 SCC 677, wherein, it was held as under:- 11. The 1971 notification did not elaborate or specify as to what would be regarded as a rigid plastic sheet. In order that there should be no ambiguity as to what is to be categorised as a flexible or rigid material....
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.... the public interest then the Court cannot sit in judgment or consider sufficiency of the reasons which appealed to the Respondents. It is for the respondents to take such policy decisions. Therefore there is no substance in this contention. 36. It is submitted that since the Parliament had thought it fit to bring several services within the purview of service tax liability, a decision was taken to broaden tax base and to withdraw the exemption. 37. A reference was made to the decision of the Madurai Bench of this Court in T.Krishnan Vs. The Assistant Commissioner of CGST & Central Excise, Madurai II Division and others, dated 23.03.2022 in W.P.(MD) Nos.2510 of 2021 etc. batch (authored by one of us). 38. It is submitted that it is not necessary for the Government to establish in each of the cases. In this connection, a reference was made to the decision of the Bombay High Court in Mehta Pharmaceutical Industries Vs. Union of India, 1994 SCC OnLine Bom 790 : (1994) 71 ELT 908, wherein, it was held as under:- 5. The second contention urged by Shri Mehta is that the notification dated August 10, 1984 was issued by Government of India in exercise of powers conferred ....
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....n of India (UOI) and others, (2004) 5 SCC 632 : 2004 SCC OnLine SC 491. 42. It is submitted that the Hon'ble Supreme Court has upheld the levy of service tax in the aforesaid cases and in several other cases and therefore it is not open for the petitioners to state that levy of service tax is unconstitutional or contrary to the Act. 43. Mr.V.Sundareswaran, the learned Special Government Pleader for the Central Government refers to the report of the Comptroller and Auditor General of India, wherein, it has been stated as follows:- 5.3 Other cases As per Sl. No.12(c) of notification dated 20th June 2012, services provided to the Government, a local authority or a governmental authority by way of construction of a structure meant predominantly for use as an educational institution is exempted from levy of service tax. 44. It is submitted that under Section 94(4) of the Service Tax Act (Chapter V of the Finance Act, 1994), every Rule made under this Chapter, Scheme framed under Section 71 and every Notification issued under Section 93 shall be laid, as soon as may be, after it is made or issued, before each House of Parliament, while it is in session for ....
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....is has been done by the filing of an affidavit before us." 10.1.6 The above view of the Hon'ble supreme court was reiterated in Narayan Govind Gavate v. State of Maharashtra, (1977) 1 SCC 133 wherein, with regard to presumption that is raised by a recital in the notification, it was held as under: "28. The High Court opined that the presumption of regularity, attached to an order containing a technically correct recital, did not operate in cases in which Section 106 Evidence Act was applicable as it was to the cases before us. We do not think that we can lay down such a broad general proposition. An order or notification, containing a recital, technically correct on the face of it, raises a presumption of fact under Section 114 illustration (e) of the Evidence Act. The well-known maxim of law on which the presumption found in illustration (e) to Section 114 of Evidence Act is: "Omnia praesumuntur rite esse acta" (i.e. all acts are presumed to have been rightly and regularly done)........." (emphasis supplied) 10.1.7 The above view with regard to presumption in view of the provisions of the Evidence Act and the maxim 'omnia praesumuntur rite esse a....
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....rial, which necessitated the issuance of a notification. 10.2.7 In this regard, it may be relevant to refer to the following judgments of the Hon'ble Supreme Court: a. Narayan Govind Gavate v. State of Maharashtra (1977) 1 SCC 133 "10....That test basically is: Was the authority concerned acting within the scope of its powers or in the sphere where its opinion and discretion must be permitted to have full play? Once the court comes to the conclusion that the authority concerned was acting within the scope of its powers and had some material, however meagre, on which it could reasonably base its opinion, the courts should not and will not interfere...." (emphasis supplied) b. State of U.P. v. Hindustan Aluminium Corpn. (1979) 3 SCC 229 at page 246 "41. ...................... We have no doubt that the State Government formed its opinion about the necessity and expediency of making the Order for the purpose of maintaining the supply and securing the equitable distribution of energy at a time when that was called for, and this Court cannot sit as a Court of appeal to examine any and every argument in an attempt to show that the opinio....
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....ed is whether the statutory provisions have been complied with." 46. M/s.R.Hemalatha, the learned Senior Standing Counsel referred to the decision of the Hon'ble Supreme Court in Dental Counsel of India Vs. Biyani Shikshan Samiti and another, (2022) 6 SCC 65, wherein, it was held as under:- 30. In State of T.N. v. P. Krishnamurthy [State of T.N. v. P. Krishnamurthy, (2006) 4 SCC 517] after considering the law laid down by this Court earlier in Indian Express Newspapers (Bombay) [Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641 : 1985 SCC (Tax) 121], Supreme Court Employees' Welfare Assn. v. Union of India [Supreme Court Employees' Welfare Assn. v. Union of India, (1989) 4 SCC 187 : 1989 SCC (L&S) 569], Shri Sitaram Sugar Co. Ltd. v. Union of India [Shri Sitaram Sugar Co. Ltd. v. Union of India, (1990) 3 SCC 223], St. Johns Teachers Training Institute v. NCTE [St. Johns Teachers Training Institute v. NCTE, (2003) 3 SCC 321 : 5 SCEC 391], Ramesh Chandra Kachardas Porwal v. State of Maharashtra [Ramesh Chandra Kachardas Porwal v. State of Maharashtra, (1981) 2 SCC 722], Union of India v. Cynamide India Ltd. [Union of India v. Cyna....
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....ipulations that refund can be claimed within specific time provided. There was thus no ambiguity nor any dispute as would have prevented the appellant from seeking refund within the period of limitation. On these given facts the substantial question at 'B' also does not arise for consideration. 48. As far as the Central Public Works Department Mr.Venkataswamy Babu, the learned Senior Panel Counsel for the respondents submits that the Notice dated 11.01.2017 bearing reference File No.52(1)/2017/PCD/AB/67 issued by Office of the Executive Engineer, Puducherry Central Division, Central Public Works Department is of no relevance. It is submitted that the service tax liability is to be determined in terms of the provisions of the Act and therefore service tax is to be paid by the petitioners and therefore these Writ Petitions are liable to be dismissed. 49. A reference was made to Paragraph No.3 of the counter affidavit filed by the fourth respondent in W.P.Nos.6641, 6652, 6929, 6923, 6961, 6966, 7172, 7325, 7327, 7179, 7005 & 7011 of 2021, wherein, it has been stated as follows:- 3. I submit that only relation between the petitioner and the Respondent No 4 is by virtue o....
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.... to private individuals subsequent to the year 2012, interim injunction cannot be granted in favour of the petitioner restraining the respondents 1 to 3 from insisting payment of service tax. Since the amounts paid by the petitioner towards service tax is being reimbursed by the State Government, the petitioner cannot be construed as an aggrieved party. If an interim order is granted in this petition, it would operate against the provisions of the Act. Hence, I do not find any merits in the petition. The Writ Miscellaneous Petition in W.M.P.No.1486 of 2018 is dismissed." 52. Aggrieved by the same, the petitioner in W.P.No.1185 of 2018 filed Writ Appeal in W.A.No.756 of 2018 before the Division Bench of this Court. By a Judgment dated 24.04.2018, the Division Bench of this Court had held that the petitioner in W.P.No.1185 of 2018 had made out a prima facie case on merits in their challenge to impugned Notification No.6/2015-Service Tax, dated 01.03.2015 and set aside the interim order of the learned Single Judge dated 20.03.2018. Operative portion of the Judgment dated 24.04.2018 of the Division Bench in W.A.No.756 of 2018 reads as under:- 12. Though, Mr.Rajinish Pathiyi....
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.... of the Finance Act, 1994 read with Central Excise Act, 1944 as made applicable to the provisions of the former enactment. 56. That apart, challenge to the collateral proceedings under Article 226 of the Constitution of India would be pre-mature if the challenge to impugned Notification No.6/2015-Service Tax, dated 01.03.2015 fails. 57. Therefore, this Court also shackles the hands of the Authorities from exercising their jurisdiction and restrains them if the challenge the impugned Notification No.6/2015-Service Tax, dated 01.03.2015 is to fail. 58. In this order, we have confined our enquiry to the challenge to the impugned Notification No.6/2015-Service Tax, dated 01.03.2015 alone. 59. In case the challenge to the impugned Notification No.6/2015- Service Tax, dated 01.03.2015 fails, the respective petitioners will have to redress their grievance if any, before the Authority under the Finance Act, 1994, as a more efficacious and an alternate remedy exits before the authorities. Wherever Order-in-Originals have been passed, the concerned petitioner will have to file statutory appeals, if they desire. 60. Wherever, Show Cause Notices have been issued, the respective ....
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....DP) of the country. 69. Service Tax was chargeable at the rates prescribed under Section 66 of the Finance Act, 1994 on the "taxable value" under Section 67 of the Finance Act, 1994. Upto 30.06.2012, there were specific definitions for various services and taxable services in Chapter V of the Finance Act, 1994. 70. Prior to 01.07.2012, some of the services provided by these petitioners were liable to service tax under the category of "works contract" as defined in definition of "taxable service" in Section 65(105)(zzzza) of the Finance Act, 1994 (Chapter V of the Finance Act, 1994). Section 65(105)(zzzza) of the Act read as under:- 65. Definitions (1)............... .................. (105) "taxable service" means any service provided or to be provided,- (a) ............. (zzzza) to any person, by any other person in relation to the execution of a works contract, excluding works contract in respect of roads, airports, railways, transport terminals, bridges, tunnels and dams. Explanation.-For the purposes of this sub-clause, "works contract" means a contract wherein,- (i) transfer of property in goods invo....
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....(Determination of Value) Rules, 2006 inserted vide Notification No.2007-ST dated 22.05.2007 with effect from 01.06.2007 for determination of value of service in the execution of works contract which reads as under:- "2A. Determination of value of services involved in the execution of a works contract : (1) Subject to the provisions of section 67, the value of taxable service in relation to services involved in the execution of a works contract (hereinafter referred to as works contract service), referred to in sub-clause (zzzza) of clause (105) of section 65 of the Act, shall be determined by the service provider in the following manner :- (i) Value of works contract service determined shall be equivalent to the gross amount charged for the works contract less the value of transfer of property in goods involved in the execution of the said works contract. Explanation.- For the purposes of this rule, - (a) gross amount charged for the works contract shall not include Value Added Tax (VAT) or sales tax, as the case may be, paid, if any, on transfer of property in goods involved in the execution of the said works contract; (b) valu....
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....titioners and made these petitioners liable to tax once again. We shall refer to the above Notification later again in the course of this order. 78. With effect from 01.07.2012, Section 66B was the charging provision for all "taxable services" provided or agreed to be provided in the "taxable territory by one person" to another person for consideration other than those services specified in the negative list, on the value under Section 67 of the Finance Act, 1994. Section 66B of the Act reads as under:- Section 66B. Charge of service tax on and after Finance Act, 2012.- There shall be levied a tax (hereinafter referred to as the service tax) at the rate of fourteen percent. on the value of all services, other than those services specified in the negative list, provided or agreed to be provided in the taxable territory by one person to another and collected in such manner as may be prescribed. Explanation:For the removal of doubts, it is hereby clarified that the references to the provisions of section 66 in Chapter V of the Finance Act, 1994 (32 of 1994) or any other Act, for the purpose of levy and collection of service tax, shall be construed as refe....
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.... service portion in the execution of works contract under this clause. (ii)Where the value has not been determined under clause (i), the person liable to pay tax on the service portion involved in the execution of the works contract shall determine the service tax payable in the following manner, namely:- (A) in case of works contracts entered into for execution of original works, service tax shall be payable on forty per cent. of the total amount charged for the works contract; Provided that where the amount charged for works contract includes the value of goods as well as land or undivided share of land, the service tax shall be payable on twenty-five per cent. of the total amount charged for the works contract; Provided that where the amount charged for works contract includes the value of goods as well as land or undivided share of land, the service tax shall be payable on thirty per cent. of the total amount charged for the works contract: Provided further that in case of works contract for construction of residential units having carpet area up to 2000 square feet or where the amount charged per residential unit from service recipi....
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....tract or any other contract, after deducting- (i) the amount charged for such goods or services, if any; and (ii)the value added tax or sales tax, if any, levied thereon: Provided that the fair market value of goods and services so supplied may be determined in accordance with the generally accepted accounting principles. Explanation 2.--For the removal of doubts, it is clarified that the provider of taxable service shall not take CENVAT credit of duties or cess paid on any inputs, used in or in relation to the said works contract, under the provisions of CENVAT Credit Rules, 2004." 80. However, the above amendment did not impact the petitioners adversely. The service provided by some of these petitioners were exempted vide Entry 12(a), (c) & (f) to the Mega Exemption Notification No.25/2012-ST dated 20.06.2012 with effect from 01.07.2012. 81. Though not relevant, it must be remembered that the most important change brought to the Finance Act, 1944 vide Finance Act, 2012 included a new definition of "service" introduced for the first time in Section 65B(44) of the Finance Act, 1994 (Chapter V of the Finance Act, 1994, concept of "Declared S....
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....ing agent on behalf of the State Government, in relation to promotion, marketing, organising, selling of lottery or facilitating in organising lottery of any kind, in any other manner, in accordance with the provisions of the Lotteries (Regulation) Act, 1998; (b)by a foreman of chit fund for conducting or organising a chit in any manner; Explanation 3. - For the purposes of this Chapter, - (a) an unincorporated association or a body of persons, as the case may be, and a member thereof shall be treated as distinct persons; (b) an establishment of a person in the taxable territory and any of his other establishment in a non-taxable territory shall be treated as establishments of distinct persons. Explanation 4. - A person carrying on a business through a branch or agency or representational office in any territory shall be treated as having an establishment in that territory; 83. Practically, every activity provided by one person to another person for consideration was a "service" and was taxable. The above definition itself excluded certain activities from its purview. Thus, only those activities were not service. The definition of "se....
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....on or any drink (whether or not intoxicating) is supplied in any manner as a part of the activity. (j) assignment by the Government of the right to use the radiofrequency spectrum and subsequent transfers thereof. 85. The expression "taxable service" was defined in Section 65B(51) of the Finance Act, 1994 as services on which service tax is leviable under Section 66B of the Act. 86. Service tax was not payable on those services which are enumerated in the negative list. The services provided by these petitioners were also not in "negative list". 87. The expression "negative list" has been defined in Section 65B(34) of the Finance Act, 1994. Section 66D of the Finance Act, 1994 which enumerates the services in the negative reads as under:- Negative list of services 65B.Interpretations: (34)"negative list" means the services which are listed in Section 66D; Section 66D: Negative list of services.- The negative list shall comprise of the following services, namely :- (a) services by Government or a local authority excluding the following services to the extent they are not covered elsewhere- i. services by the Department of Posts by w....
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....g deposits, loans or advances in so far as the consideration is represented by way of interest or discount; (ii)inter se sale or purchase of foreign currency amongst banks or authorized dealers of foreign exchange or amongst banks and such dealers; (o) service of transportation of passengers, with or without accompanied belongings, by- (i)....... (ii) railways in a class other than- (A) first class; or (B) an air-conditioned coach; (iii) metro, monorail or tramway, (iv) inland waterways; (v) public transport, other than predominantly for tourism purpose, in a vessel between places located in India; and (vi) metered cabs or auto rickshaws (p) services by way of transportation of goods- (i) by road except the services of- (A) a goods transportation agency;or (B) a courier agency; (ii) ........... (iii) by inland waterways; (q) funeral, burial, crematorium or mortuary services including transportation of the deceased. 88. The services provided by the petitioner are mostly in the nature of "works contract" as defined in Section 65B(....
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.... (a)a civil structure or any other original works meant predominantly for use other than for commerce, industry, or any other business or profession; (b) a historical monument, archaeological site or remains of national importance, archaeological excavation, or antiquity specified under the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958); (c) a structure meant predominantly for use as (i) an educational, (ii) a clinical, or (iii) an art or cultural establishment; (d) canal, dam or other irrigation works; (e) pipeline, conduit or plant for (i) water supply (ii) water treatment, or (iii) sewerage treatment or disposal; or (f) a residential complex predominantly meant for self-use or the use of their employees or other persons specified in the Explanation 1 to clause 44 of section 65 B of the said Act; 94. Mega Exemption Notification No.25/2012-ST, dated 20.06.2012 was however amended vide the impugned Notification No.6/2015-Service Tax, dated 01.03.2015 which resulted in deletion of Sub Clauses (a), (c) & (f) to Entry 12 of the above Mega Exemption Notification No.25/2012-ST dated 20.6.2012. Thus, the ac....
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....e taxable territory, the aggregator shall appoint a person in the taxable territory for the purpose of paying service tax and such person shall be liable for paying service tax. (B) in relation to service provided or agreed to be provided by a goods transport agency in respect of transportation of goods by road, where the person liable to pay freight is,- (I) any factory registered under or governed by the Factories Act, 1948 (63 of 1948); (II)any society registered under the Societies Registration Act, 1860 (21 of 1860) or under any other law for the time being in force in any part of India; (III)any co-operative society established by or under any law; (IV)any dealer of excisable goods, who is registered under the Central Excise Act, 1944 (1 of 1944) or the rules made thereunder; (V)any body corporate established, by or under any law; or (VI)any partnership firm whether registered or not under any law including association of persons; any person who pays or is liable to pay freight either himself or through his agent for the transportation of such goods by road in a goods carriage: Provided that when....
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....be provided by way of:- (a) renting of a motor vehicle designed to carry passengers, to any person who is not engaged in a similar business; or (b) supply of manpower for any purpose or security services; or (c) service portion in execution of a works contract, by any individual, Hindu Undivided Family or partnership firm, whether registered or not, including association of persons, located in the taxable territory to a business entity registered as a body corporate, located in the taxable territory, both the service provider and the service recipient to the extent notified under sub-section (2) of section 68 of the Act, for each respectively. (G) in relation to any taxable service other than online information and database access or retrieval services provided or agreed to be provided by any person which is located in a non-taxable territory and received by any person located in the taxable territory, the recipient of such service; (H) in relation to services provided or agreed to be provided by way of online information and database access or retrieval services, by any person located in a non-taxable territory and received by ....
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....ble territory shall be the person liable for paying service tax: Provided also that in case of online information and database access or retrieval services provided or agreed to be provided by any person located in a non-taxable territory and received by non-assesse online recipient, if the service provider does not have a physical presence or does not have a representative for any purpose in the taxable territory, the service provider may appoint a person in the taxable territory for the purpose of paying service tax and such person shall be liable for paying service tax: Provided also that in case of online information and database access or retrieval services provided or agreed to be provided by any person located in a non-taxable territory and received by any person located in the taxable territory, person receiving such services shall be deemed to be located in the taxable territory if any two of the following non contradictory conditions are satisfied, namely :- (a) the location of address presented by the service recipient via internet is in taxable territory; (b) the credit card or debit card or store value card or charge card or smart ca....
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....or use other than for commerce, industry, or any other business or profession; (b) a structure meant predominantly for use as (i) an educational, (ii) a clinical, or (iii) an art or cultural establishment; or (c) a residential complex predominantly meant for self-use or the use of their employees or other persons specified in the Explanation 1 to clause (44) of section 65 B of the said Act; 102. While granting the above exemptions, it was made clear that the exemption will be available only for the contracts entered into prior to 01.03.2015 and on which appropriate stamp duty, wherever applicable had been paid prior to such date. It was further made clear that nothing contained in the above Entry would apply on or after 01.04.2020. 103. It is perhaps in this context, a Clarification was issued by the Public Works Department of Pondicherry on 11.01.2017 which has been referred to supra. 104. Though the above Notification was to remain in force upto 01.04.2020, the fact remains that during the interregnum, respective GST enactments were enacted and came into force with effect from 01.07.2017 and replaced various indirect tax levied under the Union Law inclu....
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....ce, the service tax liability was confirmed on service provided in relation to works contract. 110. Therefore, these petitioners cannot claim any concession based on the alleged ignorance. Cursory glance of some of the Show Cause Notices issued to the petitioners which have been challenged in the Writ Petitions in Table Nos.2 & 4 indicates that they are assessees not only under the provisions of the Income Tax Act, 1961 but also under the Tamil Nadu Value Added Tax Act, 2006 and Puducherry Value Added Tax Act, 2007. Apart from the above, some of these petitioners failed to register and pay service tax for the services rendered by them to the Government Authorities. 111. Withdrawal of exemption in public interest is a matter of policy. Courts cannot find fault with the policy decisions of the Government for all times to come, irrespective of the satisfaction of the Government that a change in the policy was necessary in public interest and therefore, the challenge to the Notification or the show cause notices, seeking to demand tax cannot be countenanced. 112. In this connection, the decision of the Hon'ble Supreme Court in RC. Tabacco P. Ltd. Vs. Union of India, 2005 (....
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....-4-1994 was issued. This is also clear if one reads both Notifications Nos. 46/94 dated 1-3-1994 and 95/94 dated 25-4-1994. They read thus: Table S. No. Chapter/Heading No. or Sub- Heading No. Description of goods Rate Condition (1) (2) (3) (4) (5) 1. 84.13 Power-driven pumps primarily designed for handling water, namely - Nil" (a) Centrifugal pumps (horizontal or vertical pumps); (b) Deep tubewell turbine pumps; (c) Submersible pumps; (d) Axial-flow and mixed-flow vertical pumps (Notification No. 46/94 dated 1-3-1994) (1) (2) (3) (4) (5) "4a. 72, 73, 82, 83, 84 or 85 Goods other than namely: Nil If the said goods are used within the factory of production in the manufacture of goods specified in S. No. 4 above." (a) Electrical stamp-ings and laminations (b) Bearings (c) Winding wires (Notification No. 95/94-CE date....
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.... anything contained in section 66B, no service tax shall be levied or collected during the period commencing from the 1st day of April, 2015 and ending with the 29th day of February, 2016 (both days inclusive), in respect of taxable services provided to the Government, a local authority or a Governmental authority, by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation or alteration of-- (a) a civil structure or any other original works meant predominantly for use other than for commerce, industry or any other business or profession; (b) a structure meant predominantly for use as-- (i) an educational establishment; (ii)a clinical establishment; or (iii)an art or cultural establishment; (c) a residential complex predominantly meant for self-use or for the use of their employees or other persons specified in Explanation 1 to clause (44) of section 65B of the said Act, under a contract entered into before the 1st day of March, 2015 and on which appropriate stamp duty, where applicable, had been paid before that date. (2) Refund shall be made of all s....
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....the Sale of Goods Act, 1930. 120. Therefore, it cannot be said that the petitioners are remediless. They can certainly file a suit to recover the amount from the person who engaged their services by invoking principles in Section 64A of the Sale of Goods Act, 1930. 121. In the light of the above, the challenge to the impugned Notification No.6/2015-Service Tax, dated 01.03.2015 fails. Consequently, the challenge to the impugned Show Cause Notices / Summons / Demand Notice, Orders-in-Original, Letters / Communication and etc. also fails. 122. As far as the prayer for Writ of Mandamus in Table No.7 to direct the authorities acting under the Finance Act, 1994 to collect tax payable by the petitioners from the recipients of service namely, State Public Works Department cannot be countenanced as the Mandamus would lie only if there is a corresponding duty cast upon the respondent to collect the same from the State Public Works Department the respondents herein. Therefore, these Writ Petitions also fail. 123. The prayer for a direction to refund of tax already paid by the petitioner also cannot be countenanced as these petitioners are liable to tax. Therefore, wherever the Or....