2005 (8) TMI 5 - HC - Service Tax

Writ Petition - can it be challenged by way of writ on the ground that since it was not liable to service tax before 10-09-2004 the show cause notice issued is beyond jurisdiction.

Summary

Issues:
1. Interpretation of Section 65(19) of the Finance Act, 1994.
2. Applicability of Business Auxiliary Service to the petitioner's activities.
3. Exemption under Government Notification No. 25/2004.
4. Validity of the show cause notice issued by the 2nd respondent.
5. Jurisdiction of the High Court under Article 226 of the Constitution of India.

Analysis:
1. The petitioner sought a declaration that Section 65(19) of the Finance Act, 1994, as amended by the Finance Act of 2003, did not apply to their service as a "Registrar and Transfer Agency." The dispute revolved around the interpretation of the definition of "Business Auxiliary Service" under the Finance Act, particularly regarding whether the petitioner's activities fell within its scope.

2. The petitioner argued that their service as a Registrar and Transfer Agent did not fall within the definition of Business Auxiliary Service prior to 10-9-2004. They relied on the Notification No. 25/2004, dated 10-9-2004, which exempted certain taxable services, including those provided on behalf of clients, from service tax. The respondents contended that the petitioner's activities did fall within the purview of Business Auxiliary Service, specifically under Section 65(19)(iv) of the Finance Act, 2003.

3. The Court noted that the applicability of Section 65(19)(iv) to the petitioner's services was a mixed question of fact and law to be determined by the 2nd respondent. The Court emphasized that the issue of exemption under Government Notification No. 25/2004 needed to be examined and decided by the 2nd respondent in accordance with the law.

4. Regarding the validity of the show cause notice, the Court held that interference under Article 226 of the Constitution was limited to cases of jurisdictional errors or malice, which were to be addressed by the statutory authorities. Since no jurisdictional error or malice was found, the Court deemed the show cause notice valid and left it to the 2nd respondent to decide on the matter.

5. Ultimately, the Court disposed of the writ petition without costs, allowing the petitioner to submit an additional reply to the show cause notice within 15 days, particularly highlighting the Government Notification No. 25/2004. The 2nd respondent was directed to consider all submissions and pass appropriate orders in accordance with the law, independent of the Court's observations.

This comprehensive analysis of the judgment addresses the key issues raised by the petitioner and the responses provided by the respondents, highlighting the legal interpretations and implications involved in the case.