9911796707
TMI Blog2014 (9) TMI 459X X X X Extracts X X X X X X X X Extracts X X X X ..... ner is called upon to show cause as to why the Service Tax amounting to Rs. 2,32,87,465/- (Rs. 2,26,09,189/- Service Tax + Rs. 4,52,184/- education cess) on the taxable value of Rs. 21,69,03,887/- received by them during the period from 16-5-2008 to 31-3-2012, should not be demanded and recovered from them under the proviso to Section 73(1) of the Finance Act, 1994 and also to show cause why interest and penalty should not be demanded and recovered from them. 2. Facts giving rise to file the present Special Civil Application, in nutshell, are as under :- 2.1 That the petitioner is having Service Tax Registration and is engaged in the business of manufacturing industrial gases such as oxygen, nitrogen, arogen, argon, speciality g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght of possession is liable to pay Service Tax. It is further observed in the show cause notice that therefore, service of leasing the plant, machinery and equipments to M/s. Essar Steel Ltd. and M/s. GFL is covered under the service category of "Supply of Tangible Goods Service". 2.2 Feeling aggrieved by and dissatisfied with the impugned show cause notice, the petitioner has preferred the present Special Civil Application under Article 226 of the Constitution of India. 3. Mr. Jigar Shah, learned counsel appearing with Mr. Anand Nainawati, learned Advocate appearing on behalf of the petitioner has vehemently submitted that the petitioner is paying Value Added Tax under the provisions of the Gujarat Value Added Tax Act, 2003 on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as heavily relied upon the decision of the Hon'ble Supreme Court in the case of Harbanslal Sahnia and Another v. Indian Oil Corpn. and Others, reported in (2003) 2 SCC 107 (more particularly para 7 at page 110) as well as another decision of the Hon'ble Supreme Court in the case of Filterco and Another v. Commissioner of Sales Tax, Madhya Pradsesh and Another, reported in 1986 (24) E.L.T. 180 (S.C.), in support of his prayer to entertain the petition under Article 226 of the Constitution of India and to quash and set aside the impugned show cause notice. 4. Heard Mr. Jigar Shah, learned counsel appearing with Mr. Anand Nainawati, learned advocate appearing on behalf of the petitioner at length. 4.1 At the outset, it is required ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ached the Hon'ble Supreme Court against the judgment and order of the High Court which had dismissed the Writ Petition filed by the assessee wherein challenge was made to the show cause notice issued by the Assessing Authority on the ground that alternative remedy was available to the assessee. Considering the law laid down by the Hon'ble Supreme Court in the aforesaid decisions and as the present petition is against the show cause notice and the petitioner is yet to reply to the show cause notice and the show cause notice is yet to be adjudicated upon, present petition is not entertained. 4.3 Now so far as the reliance placed upon the decision of the Hon'ble Supreme Court in Harbanslal Sahnia and Another (supra) is concerned, conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion on behalf of the petitioner that the petitioner is paying VAT Tax under the Gujarat Value Added Tax Act on the transaction in question and therefore, the petitioner cannot be held liable to pay Service Tax on the same transaction/eventuality is concerned, it is required to be noted that as such while issuing show cause notice, the respondent No. 3 is conscious of the same. It is also required to be noted that as such there is no adjudication by any authority that the petitioner is liable to pay Value Added Tax and/or Service Tax. Nothing is on record to show that there is any adjudication by the authority under the VAT Act that the petitioner is liable to pay VAT. In a given case it may happen that on the same transaction, there may be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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