2007 (11) TMI 429 - HC - Service Tax

Determining applicability of the provisions of the Finance Act, 1994 before investigation - Held that - respondent is bound to consider the question of applicability of the provisions of the Finance Act, 1994 relating to service tax to the petitioner first, before undertaking any further investigation on the subject. Therefore, the writ petition is allowed

Summary

Issues:
1. Applicability of service tax provisions to the petitioner in relation to services provided by goods transport agencies.

Analysis:
The petitioner, engaged in trading sugar, argued that as per Rule 2(1)(d)(v) of the Service Tax Rules, the liability to pay service tax for transport services by goods transport agencies rests with the receiver of services in specific cases. The petitioner contended that despite raising this issue, the 3rd respondent initiated an assessment process for service tax without determining the applicability first.

The petitioner sought various reliefs through the writ petition, including quashing the summons issued by the 3rd respondent, directing a decision on the applicability of service tax provisions, and declaring the petitioner not liable for service tax on services by goods transport agencies.

The court noted that the Asst. Solicitor General failed to demonstrate that a decision on applicability was made after notice and hearing to the petitioner. Consequently, the court held that the 3rd respondent must first consider the applicability of service tax provisions to the petitioner before proceeding with any investigation.

As a result, the court allowed the writ petition and directed the 2nd respondent to determine the applicability of service tax provisions to the petitioner in line with the Finance Act, 1994, Service Tax Rules, and relevant circular before quantifying any tax amount. The petitioner must receive an order on applicability before being asked to provide details for tax assessment.

In conclusion, the court granted the writ petition, emphasizing the importance of assessing the applicability of service tax provisions to the petitioner before initiating any investigation or assessment process.