2018 (12) TMI 386 - HC - Service Tax

Out-door catering services or not - appellant was a contractor conducting a canteen in the premises of M/s. Hindustan Newsprint Ltd. - Held that - The High Court exercising its extra-ordinary power, could also look into the hardship caused especially in the context of the Appellate Authority having found the specific transaction to be not taxable and not coming within the ambit of a taxable service under the Finance Act, 1994 - In the present case, as we already noticed, there is no taxable transaction insofar as the transaction of the appellant having been held to fall outside the definition of out-door catering service, on which alone, the assessment was made under the Finance Act, 1994. The Assessing Officer could not have imposed tax, especially on the finding rendered by the First Appellate Authority which is accepted by the Department - the demand made be not proceeded with on the certain condition being complied - appeal disposed off.

Summary

Issues: Central Excise appeal raising questions of law regarding liability to tax for out-door catering services, delay in filing appeals, condonation of delay, and equitable considerations in tax law.

Analysis:
1. The appellant, a contractor running a canteen for employees, was assessed for out-door catering services under the Finance Act, 1994. The First Appellate Authority accepted the appellant's case that no out-door catering was carried out, which the Department did not challenge. However, one appeal was rejected due to delay, leading to the Tribunal also dismissing the appeal, resulting in the current appeal.

2. The main question of law is whether the assessee could be made liable for tax when not engaged in a taxable service, as found by the First Appellate Authority and accepted by the Department. The appellant relied on legal precedents to support their case, while the Revenue's counsel argued against the applicability of certain cases and emphasized the statutory limitations on condonation of delay.

3. The judgment highlighted the distinction between the powers of the Commissioner, Tribunal, and the High Court, stating that while the former two are bound by statute, the High Court can consider equitable factors. Citing a legal precedent, the judgment emphasized that if a transaction is not taxable under the law, no tax can be imposed based on equitable grounds, reinforcing the finding that the appellant's transaction fell outside the taxable service definition.

4. Ultimately, the court held that the Assessing Officer could not impose tax considering the findings of the First Appellate Authority, directing that the demand not be proceeded with if a specified amount is paid to the Chief Minister's Relief Fund. Failure to comply within a month would allow the respondent to proceed with recovery. The judgment concluded by disposing of the Central Excise appeal, providing a clear directive on the payment condition to avoid recovery of the demand.