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TMI Blog2021 (2) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... ch taxable services. 3. Petitioner contends that it was paying service tax on all taxable services and filing periodical returns with the 1st respondent- Department showing turnover of taxable services and exempted services, service tax payable and service tax paid etc; that it mainly executes works contracts relating to laying of electrical transmission lines and construction of canals for State Governments and also supplies materials needed for execution of these projects by the clients; that it had shown the turnovers of both taxable and 'exempted' services in its ST-3 returns; that there was no requirement of showing the trading turnover and 'non-taxable' services (for which service tax is not applicable) in the periodical ST-3 returns as the said return does not contain any column for the same; and hence the same were not reflected in the ST-3 returns. 4. It contends that: a) canal construction works undertaken by it as works contracts or EPC contracts are excluded from levy of service tax earlier under Section 65(105)(zzzza) of the Finance Act, 1994, which defines the term "works contract" as construction of canal for the State Government which is not primarily for the pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ST-3 returns were not shown because the said return did not contain any provision for the same; and that all records of petitioner had been audited by March, 2017 for the period 2012-13 to 2014-15 and during the course of audit also, petitioner had submitted all the contracts/agreements undertaken for the services rendered and project-wise details up to financial year 2014-15. It contended that it was the duty of the 5th respondent to verify whether the turnovers were exempted or not and show-cause notice ought not to have been issued only on the basis of turnovers reflected in the balance sheet. It was also pointed out that there was no suppression of facts either. 9. However, the Commissioner of Central Tax (3rd respondent) issued a show cause notice dt.24.04.2017 proposing to levy service tax, interest and penalty on the petitioner in relation to works contract service and legal consultancy service by placing reliance on audited statements of profit & Loss account of the petitioner along with notes for the period 2011-12 to 2014-15 and ST-3 returns filed by the petitioner. Later, through a corrigendum, the adjudicating authority was changed from the 3rd respondent to the Pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen the petitioner had explained that he was not required to pay service tax since it provided non-taxable and exempted services; and all necessary evidence was produced before the 5th respondent and also in reply to the notice issued by the 3rd respondent. 16. According to the petitioner, in the ST-3 return there is no column for "non-taxable services" though there is a column for "exempted services", that there is a distinction between the two and the petitioner cannot be faulted by the 4th respondent for not indicating in the ST-3 returns, the turnover relating to trading activity in goods or construction of canals and roads, which are in the non-taxable category. 17. According to the petitioner, in the letters addressed by it, it had explained the difference between its turnover as per the Balance Sheet and ST-3 returns and other documents, but the same had not been considered by the 4th respondent. 18. In the counter filed on behalf of the respondents, a stand is taken that in ST-3 returns, there is a specific column for "exempted services" and the petitioner is not correct in contending that such a column is not there in the ST-3 returns. 19. But, the Additional Standing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l on record by an authority would vitiate the exercise of power by the said authority. It declared: "30. It is well settled that the exercise of administrative power will stand vitiated if there is a manifest error of record or the exercise of power is arbitrary. Similarly, if the power has been exercised on the non-consideration or non-application of mind to relevant factors the exercise of power will be regarded as manifestly erroneous." 24. Similar view was also taken in State of NCT of Delhi v. Sanjeev (2005) 5 SCC 181, at page 190 and it was declared : "16. ... If the power has been exercised on a non-consideration or non-application of mind to relevant factors, the exercise of power will be regarded as manifestly erroneous...." 25. In such situations where there is non-consideration of material evidence by a statutory authority, judicial review by the High Court in exercise of it's power under Art.226 of the Constitution of India is permissible, and existence of alternative remedy is not a bar for exercise of such power. 26. Also, existence of an alternative remedy is not a bar to entertain a Writ Petition if a statutory authority acts without jurisdiction or violates ..... X X X X Extracts X X X X X X X X Extracts X X X X
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