2015 (12) TMI 74 - AT - Service Tax

Demand of service tax from the Senior Divisional Engineer (Coordination), North Western Railway, Jodhpur. - renting of immovable property service - Held that - Property belongs to the Union of India, Ministry of Railways and is situate within the territorial/administrative jurisdiction of the North Western Railway, Jodhpur Division. The entire adjudication proceedings were against the Senior Divisional Engineer (Coordination), North Western Railway and at no point of time the Union of India was impleaded. No notice was issued and no participation of the Central Government invited to the proceedings. The adjudication order is also passed against the Senior Divisional Engineer (Coordination), North Western Railway, State actor. It is again the Senior Divisional Engineer (Coordination), North Western Railway who has filed the appeal and this application for condonation of delay before the Tribunal. In the light of settled authority and the provisions of Article 300 of the Constitution, proceedings instituted against an official of the Central Government in the Ministry of Railways without arraying the Union of India/Central Government as a party, when the alleged tax liability of the State, would be a nullity and no liability would attach to the Central Government, in the circumstances. - under Section 99 of the Act, the liability of the Railways, to service tax, is unenforceable.

Issues involved:
1. Delay in filing the appeal and application for condonation of delay.
2. Liability to service tax on "renting of immovable property" service provided by the Union of India.
3. Lack of impleadment of the Union of India in the proceedings.
4. Enforceability of the adjudication order against a State actor.
5. Applicability of Section 99 of the Act on the liability of Railways to service tax.

Analysis:

1. Delay in filing the appeal and application for condonation of delay:
The appeal was filed by the Senior Divisional Engineer (Coordination), North Western Railway, Jodhpur against an adjudication order confirming service tax liability. The appeal was filed with a delay of one month, and an application for condonation of delay was also submitted. The Tribunal considered the delay and the reasons provided in the application before proceeding with the analysis of the case.

2. Liability to service tax on "renting of immovable property" service provided by the Union of India:
The proceedings were initiated against the Senior Divisional Engineer (Coordination), North Western Railway, Jodhpur, regarding the alleged liability to service tax on the taxable service of "renting of immovable property" provided by the Union of India, Ministry of Railways. The property in question belonged to the Union of India, Ministry of Railways, within the jurisdiction of the North Western Railway, Jodhpur Division. However, it was noted that the Union of India was not impleaded in the proceedings, and no notice was issued to or participation invited from the Central Government. The adjudication order against a State actor without involving the Union of India was deemed unenforceable.

3. Lack of impleadment of the Union of India in the proceedings:
The Tribunal highlighted that proceedings initiated against an official of the Central Government without including the Union of India as a party would render the alleged tax liability of the State a nullity. It was emphasized that in such circumstances, no liability would attach to the Central Government, and the adjudication order would be unenforceable.

4. Enforceability of the adjudication order against a State actor:
In light of settled authority and the provisions of Article 300 of the Constitution, it was established that proceedings against an official of the Central Government without involving the Union of India would result in the adjudication order being unenforceable. The Tribunal declared the adjudication order unenforceable and deemed the appeal by the appellant and the application for condonation of delay as not maintainable and infructuous.

5. Applicability of Section 99 of the Act on the liability of Railways to service tax:
The Tribunal also noted that under Section 99 of the Act, the liability of Railways to service tax was declared unenforceable. Therefore, the appeal by the appellant was considered both not maintainable and infructuous in the given circumstances.

In conclusion, the Tribunal declared the adjudication order unenforceable due to the lack of impleadment of the Union of India in the proceedings, rendering the appeal and application for condonation of delay as not maintainable and infructuous.

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