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TMI Blog2012 (6) TMI 792X X X X Extracts X X X X X X X X Extracts X X X X ..... d show cause notice requiring the petitioner to show cause why service tax amounting to ₹ 138 crores may not be demanded with interest and penalty. The notice invokes the provisions of the Finance Act, 1994 in respect of taxable service on erection, commissioning and installation. 3. According to the petitioner, provisions of Section 65(105)(zzd) and Section 65(39a) to the extent of concerning services on erection, commissioning and installation in the ambit of taxable service are ultra vires and beyond the legislative competence of the Parliament as the subject matter is exclusively within the domain of the State Legislature under Entry 54 of List II of Seventh Schedule read with Article 366 (29A)(b) of the Constitution (providi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of India Ors. vs. Modi Rubber Limited Ors., 1986 (25) E.L.T. 849 (S.C.). It is further submitted that there was no question of suppression of the liability as the entire information was in public domain and in absence of requisite mens rea the show cause notice involving extended limitation under Section 73 of the Act was untenable. In support of this submission, reliance has been placed on Kerala State Electricity Board vs. Commissioner of Central Excise, Thiruvananthapuram, (2008) 1 SCC 780. 7. Learned counsel for the department opposed the above submissions and submitted that the notification issued under Section 93 has no relevance to the scope of impugned statutory provisions defining taxable service. The said notifications a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ach of the sub-clauses of that clause refers to the different kinds of services provided. Most of the taxable services cannot be said to be in any way related to goods or passengers carried by road or waterways. For example, Section 65(41)(g) provides for service rendered to a client by a consulting engineer, Section 65(41)(k) refers to service to a client by a manpower recruitment agency, Section 65(41)(o) refers to service by pandal or shamiana contractors and so on. The rate of service tax has been fixed under Section 66. Section 67 provides for valuation of taxable service for the purposes of charging tax. The provision for valuation of service rendered by clearing and forwarding agents has been dealt with under clause (j) and service p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sn. of India v. Union of India,(1989) 3 SCC 634: (SCC pp. 652-53, paras 30-31) ' subjects which in one aspect and for one purpose fall within the power of a particular legislature may in another aspect and for another purpose fall within another legislative power'. Indeed, the law 'with respect to' a subject might incidentally 'affect' another subject in some way; but that is not the same thing as the law being on the latter subject. There might be overlapping; but the overlapping must be in law. The same transaction may involve two or more taxable events in its different aspects. But the fact that there is an overlapping does not detract from the distinctiveness of the aspects. 32. Since service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entirety, whereas on the one hand, the Central Government would be deprived of obtaining any tax whatsoever under the Finance Act, 1994, it is possible to arrive at a conclusion that no tax at all would be payable as the tax has been held to be an indivisible one. A distinction must be borne in mind between an indivisible contract and a composite contract. If in a contract, an element to provide service is contained, the purport and object for which the Constitution had to be amended and Clause (29-A) had to be inserted in Article 366, must be kept in mind. 30. We have noticed hereinbefore that a legal fiction is created by reason of the said provision. Such a legal fiction, as is well known, should be applied only to the extent for wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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