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TMI Blog2019 (2) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... SMT A. SREEKALA, SC, CENTRAL BOARD OF EXCISE AND CUSTOMS JUDGMENT Ashok Menon, J. The Writ Appeals are preferred against the common judgment of dismissal of two out of three Writ Petitions, W.P.(C) Nos.9591/2005 and 34643/2004, seeking similar reliefs. Declarations were sought by the petitioners to hold Section 67 in Chapter V of the Finance Act, 1994 (Act 32 of 1994)(for short 'the Act') and the amendments made in the Rules and Notifications therein, as ultra vires the Constitution of India, insofar as it includes the expenses and salaries paid to the Security Guards and the statutory payments like contributions to ESI and EPF in the 'gross amount' charged for valuation of 'taxable service' in computing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or taking into account the actual service aspect rendered by them. 6. In view of the above, the appellants contend that there is absolutely no reason in including the said items in 'gross amount', as Section 67 of the Act only provides for valuation of 'taxable service' and that it is violative of Articles 14 and 19(1)(g) of the Constitution. It is pointed out that the salary and other statutory payments will have to be segregated from the 'gross amount' and only the balance is to be reckoned for the purpose of taxation. 7. Per contra, the Revenue would contend that individual assessments have been made against each of the Agencies, who are either members of the larger association or independent petitioners and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the writ petitioners. The challenge of the constitutional validity of Section 67 is also to a limited extent. There is no actual dispute about the fact that the appellants and the Security Agencies are also providing service, liable for service tax, but to what extent, is the question needs to be decided and since the section is ambiguous on that part, it is to be held as ultra vires to the Constitution, is the arguments for the writ petitioners. 11. The learned Amicus Curiae, Smt.Parvathi relies on the decision in Union of India v. M/s Intercontinental Consultants & Technocrats Pvt.Ltd., 2018 (4) SCALE 243, in support of her arguments. The Hon'ble Supreme Court while considering the scope of Section 67 of the Act and the Rules made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce receiver indicates that there is no master and servant relationship between the security personnel and the clients/service receiver. In the counter-affidavit filed by respondents, it is specifically contended in para 9 that this Court was approached earlier by filing W.P.(C) Nos.20017/2004 and 17045/2004 for a direction to reimburse the service tax, if they failed to collect from their clients due to non-inclusion of such provisions for realising service tax in the agreements with the clients. The Writ Petitions were disposed of directing the respondents to consider the claim of the petitioners and pass orders as specified. Without revealing the fact regarding the filing of the earlier Writ Petitions and the directions given thereunder, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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