9911796707
TMI Blog2022 (4) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice Tax Rules, 1994. The other challenge on the ground that the show cause notices are time barred is concerned, it is noticed that the petitioners have neither obtained registration nor filed returns. Therefore, it cannot be said that the petitioners were not guilty of suppression of facts - HELD THAT:- The show cause notices issued by the respondents based on the information gathered from the counterpart from the Income Tax Department, cannot be said to be time barred. Had the petitioners obtained registration and filed returns stating that they were not liable to pay tax, even if they wrongly claimed that they were not liable to pay tax, it would have been open to the petitioners to show their bona fide that they are not liable to pay the tax and therefore, no case was made out for no suppression of facts. Exemption was withdrawn and re-introduced with certain conditions. The exemption is confined to a specific category of contracts entered before 01.03.2015. Therefore, it is open for the petitioners to reply to the show cause notices and meet out the allegations contained in the show cause notices, taking advantage of the benefit given by the Parliament, vide Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioning, installation, completion, fitting out, repair, maintenance, renovation, or alteration of- (a) a civil structure of any other original works meant predominantly for use other than for commerce, industry, or any other business or profession; (b) ............ (c) a structure meant predominantly for use as (i) an educational, (ii) a clinical, or (iii) an art or cultural establishment: (d) ........ (e) ........ (f) a residential complex predominantly meant for self-use or the use of their employees or other persons specified in the Explanation 1 to clause 44 of Section 65 B of the said Act;'' 3.The learned counsel for the petitioners submits that the above said Notification granting exemption to Government Contractors providing services to the Government, Local Authorities or Governmental Authorities by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation and alteration of works specified, was removed by an amendment to the said Notification by Notification No.6/2015- Service Tax, dated 01.03.2015. 4.The learned counsel for the petitioners submits that though the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eported in 2016 (336) ELT 622 (Mad.) (vi) BNP Paribas Global Securities Operations Pvt. Ltd. Vs. Astt. Commr. of S.T., Chennai reported in 2018 (11) G.S.T.L. 28 (Mad.) (vii) Union of India vs. Kothari Petrochemicals Ltd. reported in 2019 (367) E.L.T. 530 (Mad.) (viii) A decision of this Court in the case of Nandhini Constructions, Rep. by a Partner cum Authorised Signatory, Erode vs. The Government of India, Rep. by its Secretary, Ministry of Finance, New Delhi and 14 others [W.A.No.756 of 2018, dated 24.04.2018] (ix) A decision of this Court in the case of V.Gopalakrishnan vs. The Government of India, Rep. by its Secretary, Ministry of Finance, New Delhi and 4 others [W.P.(MD)No.13912 of 2020 etc. batch, dated 07.10.2020] '' 7.The learned counsel for the petitioners has also relied upon a decision of the Hon'ble Supreme Court in the case of WPIL Ltd., Ghaziabad vs. Commissioner of Central Excise, Meerut, U.P., reported in 2005 (3) SCC 73. 8.The learned counsel for the petitioners further submits that as far as W.P.(MD)No.7137 of 2021 is concerned, there was no pre-show cause notice consultation, as the demand proposed in the notices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 78 of the Finance Act, 1994 and therefore, on this count, it cannot be said that there was suppression of fact, as the Department itself confined as to whether there was a case made out for suppression of facts. 13.As far as W.P.(MD)No.22190 of 2021 is concerned, the petitioner has challenged the impugned show cause notice for the period between 01.10.2015 and 31.03.2016 on the ground that the demand is time barred. 14.Opposing the prayer, the learned Senior Panel Counsel for CGST and Central Excise submits that the Writ Petitions are premature and are liable to be dismissed, as the petitioners have challenged the show cause notices. In this connection, the learned Senior Panel Counsel has relied on the following decisions:- (i) Navasakthi Township Dev. P. Ltd. vs. Commr. of C. EX. S.T., Puducherry reported in 2017 (358) E.L.T. 116 (Mad.) (ii) Deputy Commissioner of C. Ex., Madurai vs. Madura Coats Ltd. reported in 2018 (362) E.L.T. 108 (Mad.) (iii) Sundaram Finance Ltd. vs. Commissioner, LTU, Audit Circle, Chennai reported in 2019 (28) G.S.T.L. 220 (Mad.) 15.The learned Senior Panel Counsel therefore submits that the Writ Petitions filed by the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Senior Panel Counsel submits that the terms of the contract is of no consequence. In any event, levy of service tax exists as long as the service is provided and therefore, the petitioners are liable to pay tax. Therefore, the learned Senior Panel Counsel prays for dismissal of the Writ Petitions. 21.The learned Senior Panel Counsel also relied on a decision of the Hon'ble Supreme Court in Union of India vs. Unicorn Industries reported in 2019 (368) ELT 202 (SC) , wherein the Hon'ble Supreme Court has made a reference to the judgment in the case of Kasinka Trading and another vs. Union of India and another reported in 1995 (1) SCC 274 and held that the doctrine of promissory estoppel is applicable against the Government also particularly where it is necessary to prevent fraud or manifest injustice. The doctrine, however, cannot be pressed into aid to compel the Government or public authority to carry out a representation or promise which is contrary to law or which was outside the authority of power of the Officer of the Government or of the pubic authority to make. 22.It is submitted that the withdrawal of exemption in public interest is a matter of polic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eyond five years period from the last date for filing of the returns. Bearing the above, the entire demand proposed in the show cause notice cannot be said to be time barred. To that extent, the Writ Petitions filed challenging the impugned proceedings cannot be sustained. It is open for the petitioners to establish the same before the respondents by explaining the provisions of Section 73 of the Finance Act, 1994 read with Rule 7 of the Service Tax Rules, 1994. 28.The other challenge on the ground that the show cause notices are time barred is concerned, it is noticed that the petitioners have neither obtained registration nor filed returns. Therefore, it cannot be said that the petitioners were not guilty of suppression of facts. On this score, I wish to hold that the show cause notices issued by the respondents based on the information gathered from the counterpart from the Income Tax Department, cannot be said to be time barred. Had the petitioners obtained registration and filed returns stating that they were not liable to pay tax, even if they wrongly claimed that they were not liable to pay tax, it would have been open to the petitioners to show their bona fide that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eby makes the following further amendments in the notification of the Government of India, in the Ministry of Finance (Department of Revenue) No. 25/2012-Service Tax, dated the 20 th June, 2012, published in the Gazette of India, Extraordinary, Part II, Section 3, Subsection (i) vide number G.S.R.467(E), dated the 20 th June, 2012 namely:- 1. In the said notification,- (i) ......... ''2(i) ........... (ii) ............. (ii) in entry 12, items (a), (c) and (f) shall be omitted; 3 Section 102 of the Finance Act (1)Notwithstanding anything contained in section 66B, no service tax shall be levied or collected during the period commencing from the 1 st day of April, 2015 and ending with the 29 th day of February,2016 (both days inclusive), in respect of taxable services provided to the Government, a local authority or a Governmental authority, by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation or alteration of (a)a civil structure or any other original works meant predominantly for use other t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be complied by the petitioners. The Hon'ble Supreme Court in W.P.I.L. Ltd., case [supra], cited by the learned counsel for the petitioners, had an occasion to consider the scope of Notification No.46/94, dated 01.03.1994 and Notification No.95/94-CE, dated 25.04.1994. The Hon'ble Supreme Court took note of the fact that parts of power-driven pumps, which were to be utilized for manufacturing power-driven pumps within the factory, continued to be exempted from the excise duty. The exemption was withdrawn when a consolidated Notification No.46/94 was issued on 01.03.1994 with a view to reduce the number of Notifications. Thus, the exemption that was being granted for power-driven pumps as well as parts of power-driven pumps was withdrawn. On realizing the mistake, the Government issued a subsequent Notification on 25.04.1994 in Notification No.95/94. Noting the above, the Hon'ble Supreme Court held as under:- ''13.The contention of the appellant, in our opinion, therefore, is well founded that both power-driven pumps as well as parts of power-driven pumps used for manufacturing of pumps within the factory were exempted from payment of excise duty. We are als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Notification No. 95/94-CE dated 25-4-1994) 14. In our opinion, therefore, the authorities were in error in upholding the demand and in directing the appellant to pay excise duty. 15.The learned counsel for the appellant is also right in relying upon a decision of this Court in CCE v. Wood Craft Products Ltd. [(1995) 3 SCC 454] In that case, this Court held that a clarificatory notification would take effect retrospectively. Such a notification merely clarifies the position and makes explicit what was implicit. Clarificatory notifications have been issued to end the dispute between the parties. 16.In view of the consistent policy of the Government of exempting parts of power-driven pumps utilised by the factory within the factory premises, it could not be said that while issuing Notification No. 46/94 of 1-3-1994, the exemption in respect of the said item which was operative was either withdrawn or revoked. The action was taken only with a view to rescinding several notifications and by issuing a composite notification. The policy remained as it was and in view of demand being made by the Department, a representation was ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
