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TMI Blog2022 (8) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... by the learned Writ Court in the earlier writ petition in W.P. No.48 of 2014 dated 20th November, 2014 does not reflect the correct legal position as it was held that The department has the jurisdiction and obligation to determine whether the writ petitioner is receiving support services from the government. Therefore, before it could demand or even show cause under Section 73 of the Finance Act, 1995, for Service Tax, it was incumbent upon the department to make the determination whether the subject service could be classified as a support service and the writ petitioner exigible to service tax. If the department s answer was in the affirmative, only then, a show cause notice and thereafter a demand for service tax could have been issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... N BLE MR. JUSTICE T. S. SIVAGNANAM AND HON BLE MR. JUSTICE BIVAS PATTANAYAK Appearance:- Mr. Vipul Kundalia, Mr. Tapan Bhanja .. for the appellant. Mr. Rajeev Kumar Agarwal for the respondent/writ petitioner JUDGMENT (Judgment of the Court was delivered by T.S. SIVAGNANAM, J.) Re: I.A. CAN 1 of 2022 1. This application has been filed to condone the delay of 1365 days in filing the instant appeal. 2. We have heard Mr. Vipul Kundalia, learned counsel appearing for the appellant and Mr. Rajeev Kumar Agarwal, learned counsel appearing for the respondent. 3. We have perused the affidavit filed in support of the petition but we are not fully convinced with the reasons cited therein. However, we brief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r even show cause under Section 73 of the Finance Act, 1995, for Service Tax, it was incumbent upon the department to make the determination whether the subject service could be classified as a support service and the writ petitioner exigible to service tax. If the department s answer was in the affirmative, only then, a show cause notice and thereafter a demand for service tax could have been issued. 8. After noting the above observation made by the learned Single Bench in the earlier writ petition, the show cause notice was quashed with liberty to the appellant to act in accordance with the order dated November 20, 2014 passed in W.P. No.48 of 2014. Aggrieved by the same, the department is before us. 9. After we have elaborately h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... January, 2016. On going through the judgment rendered by the Hon ble Division Bench, we find that the observations/findings rendered by the learned Writ Court in W.P. No. 48 of 2014 has not been affirmed by the Hon ble Division Bench but appeal filed by the department was disposed of by clarifying that it will be open to the department to decide the issue in accordance with law. Therefore, we are fully justified in interpreting the order in W.P. No. 48 of 2014 and holding that it does not reflect the correct legal position. 12. The learned single Bench in the earlier order, which we have quoted above, has stated that the department has an obligation to determine whether the writ petitioner is receiving support service from the Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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