9911796707
TMI Blog2006 (12) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... either enhancing the tax liability of the petitioner nor does it per se discriminate against the petitioner as a concession which is subject to a condition as under the present notification, in the sense that, a person claiming benefit under one particular provision is not entitled for benefit under the other, cannot be said to be a discriminatory provision. The exemption notification always come subject to the condition to which the exemption is granted and there is no question of Courts dissecting the notification of this nature to extend the benefit but not to insist compliance of the condition for a particular assessee. It is for the legislature to take care of what class of persons certain benefits are extended and in what manner, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 12/2003-Service-tax, dt. the 20th June, 2003 [GSR 503(E), dt. the 20th June, 1303] 3. The effect of this condition, to put it simply is that those persons who have to pay service-tax in respect of the service of construction of complex who have availed of what is known as Cenvat credit of duty on inputs or capital goods or the Cenvat credit of service-tax on input services used for providing such taxable service are excluded from the benefit of this notification and this is What hurts the petitioner. Though the notification, in one sense, dangles a carrot before the petitioner, unfortunately for the petitioner, though it has remaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 005-ST did provide a larger benefit to persons like the petitioner, it has been superseded by the present Notification No. 1 of 2006-ST; that the present notification expressly denies the benefit under it to those who are availing the Cenvat credit on services also; that it is not incumbent on the respondents to continue to extend a particular benefit which had been extended as under Notification No. 18 of 2005-ST; that the principle of promissory estoppel cannot be invoked in matters of taxation particularly issue of exemption notification under s. 93 of the Act being in the nature of exercise of the power of delegated legislation; that the writ petition is without merit and is liable to be dismissed. 6. What is essentially urged by Sri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nditions as may be specified in the notification, taxable service of any specified description from the whole or any part of service-tax leviable thereon. 8. The exemption itself in terms of this section can be one which is granted generally or subject to such conditions as may be specified in the notification, In the present case, the particular condition which the petitioner is aggrieved with is the condition of option given to a person like the petitioner to seek benefit of either the Cenvat credit of duty on service-tax input services or to avail benefit under the present notification. 9. In fact, it may be noticed that the notification is one which provides for a different manner of arriving at the liability and after so quantif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or striking down a notification of this nature which if at all, has to be examined and understood as a whole and not in piecemeal. The exemption notification always come subject to the condition to which the exemption is granted and there is no question of Courts dissecting the notification of this nature to extend the benefit but not to insist compliance of the condition for a particular assessee. It is for the legislature to take care of what class of persons certain benefits are extended and in what manner, etc.,. 12. As of now, I do not find any act of discrimination under the present notification which necessitates the notification itself to be quashed. 13. However, it is open to the petitioner to avail of such other remedies are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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