WHETHER REGISTRATION CAN BE GRANTED UNDER DIFFERENT TAXABLE SERVICE THAN THE ONE APPLIED FOR?

[Mr. M. GOVINDARAJAN]

According to Sec. 69 of Finance Act, 1994 every person liable to pay the service tax under Chapter V of Finance Act, 1994 or rules there under shall, within such time and in such manner and in such form as may be prescribed, make an application for registration to the Superintendent of Central Excise.  In this regard Central Government is given power to specify in the notification such other person or class of persons who shall make an application for registration within such time and such manner and in such form as may be prescribed. 

Rule 4 of the Service Tax Rules, 1994 provides that every person liable for paying the service tax shall make an application to the concerned Superintendent of Central Excise in Form ST- 1 for registration within a period of thirty days from the date of the service tax under Sec. 66 of the Finance Act, 1994 is levied.    Where a person commences the business of providing a taxable service after such service has been levied, he shall make an application for registration within a period of thirty days from the date of such commencement.  Where an assessee is rendering more than one taxable service he may make a single application mentioning therein all the taxable services provided by him to the concerned Superintendent of Central Excise.

Rule 5 provides that the Superintendent of Central Excise shall after due verification of the application form or an  intimation of change in the information or details furnished in ST - 1 form as the case may be grant a certificate of registration in Form ST - 2 within seven days from the date of receipt of the application or the intimation.   If the registration certificate is not granted within seven days, the registration applied shall be deemed to be having been granted.

One interesting case in the matter of registration has come before the Hon'ble High Court, Gujarat.  M/s Karamchand Thapar & Bros. (Coal Sales) Ltd., is a company engaged in the business of leasing operation and supervisory work for supply of coal to various power plants.   The company had applied for registration on 2^nd November 2005 indicating in Form ST - 1 their service as Business Auxiliary Services.  The certificate of registration was not granted to the company within seven days from the date of application.   It was not rejected by the Authorities.  Therefore, by virtue of Rule 5 of Service Tax rules it is a deemed registration.  

The grievance of the company is after twenty two months of making the application for registration the company has been given registration in the category of 'Clearing and Forwarding Services'.  The rate of service tax is uniform to all the services coming under the service tax net.  By giving registration under different head the company is liable to pay tax under 'Clearing and Forwarding Services' from 1999.  The company has filed two appeals in the Tribunal at Calcutta and the tribunal at Nagpur.   In these appeal the issue involved is whether the petitioner ought to be registered as rendering of service of clearing and forwarding agents or that Business Auxiliary service.

However the company filed a writ petition before the Hon'ble High Court, Gujarat in WP No. 1146 of 2007 (2008 (11) STR 549 (cal)).  The main contention put forth by the Company before the Court is whether without an appropriate order of adjudication the petitioner can be registered in a different category from the one which application was made by the Service Tax Authorities after twenty two months in an unilateral exercise.

The Revenue submits that this is essentially a factual issue and allegation has been made on the authority or jurisdiction of the Service Tax Authorities on the question of registering the Company in a category different from the category for which Company had applied for that matter ought to be decided by the authorities themselves and the Service Tax Authorities were willing to re-examine the Company's case.

The Hon'ble High Court, having heard both parties and particularly having regard to the submission of the Revenue that they are willing to re-examine the matter, the Court do not think the certificate of registration granted in favor of the Company can be allowed to remain in operation and accordingly the Court directs that no effect shall be given to the certificate of registration granted by the Revenue. 

The Court further held that the concerned authority being the Commissioner of Service Tax, having jurisdiction over the matter shall consider the case of the company upon giving them an opportunity of being heard and this exercise shall be completed within six weeks from the date of communication of the order of the Court.  A reasoned order shall be given in accordance with law which shall be communicated to the Company within a further period of one week. 

The Court further clarified that without prejudice to their rights and contentions, the Company shall continue to pay service under the category of 'Business Auxiliary Service, if that is the manner in which they have been paying the tax up till now until final decision is taken by the Commissioner on the subject dispute.