9911796707
TMI Blog2024 (8) TMI 1330X X X X Extracts X X X X X X X X Extracts X X X X ..... such service/activity as provided under the 2006 circular, which as observed hereinabove has no substance.' The adjudication is a quasi-judicial function of the departmental officers of the Central Board of Indirect Taxes and Customs. It is mandatory that a Show Cause Notice (SCN) is issued if the department contemplates any action prejudicial to the assessee. The SCN would detail the provisions of law allegedly violated and ask the noticee to show cause why action should not be initiated against him under the relevant provisions of the Act/Rules. Thus, an SCN gives the noticee an opportunity to present his case. It is noted that the SCN in the present case was issued by the Central Excise officer on 19.06.2014, which is well before the introduction of GST in India. Thereafter, the impugned order was passed in 2018, which was after the introduction of GST - Section 174 of the CGST Act 2017, unequivocally saved all rights, obligations, privileges and liabilities that were available under the old laws, which would continue in the new regime - Section 174 of the CGST Act 2017, unequivocally saved all rights, obligations, privileges and liabilities that were available under the ol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with interest at the appropriate rate under Section 75 of the Finance Act. The notice also proposed penalty under the provisions of Section 76, 77 and 78 of the Finance Act for contravention of provisions of Section 66, 67, 68 and 69 of the Finance Act and Rule 4, 5, 6, and 7 of the Service Tax Rules. The matter was adjudicated vide Order-in-Original dated 10.01.2018, wherein it was noted that the appellant had collected an amount of Rs. 39,23,493/- as allotment fee which is leviable to service tax. Consequently, the order held that the appellant had evaded service tax amounting to Rs. 4,84,943/- along with interest and penalties for the services provided for the period 01.04.2012-30.06.2012 was imposable. However, relief was granted for the period 01.07.2012-31.03.2013 for service tax amounting to Rs. 89,302/- and applicable interest and penalties were also set aside. Being aggrieved, the appellant preferred an appeal before the Commissioner (Appeals) who reduced the service tax liability of the Appellant to Rs. 61,334/- and held that the appellant is liable to pay the same along with interest for the services provided for the period 01.04.2012-30.06.2012. The penalty under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T, Surat 2006 5 STR 250 (New Delhi-CESTAT) 3.2 Learned Chartered Accountant further submitted that as per the facts and circumstances of the case, the adjudicating authority has failed to consider that the appellant is performing mandatory and sovereign functions under the RAPM Act and is not liable to any service tax in terms of clarification issued by the Board vide Circular dated 18.12.2006. He also submitted that Commissioner (Appeals) had grossly erred in not considering that while carrying out the activity of allotment of shops/sheds, the appellant was discharging its mandatory and sovereign function under the RAPM Act and therefore, is not liable to pay any service tax on the said activity. In support of his submission, he relied upon the following decisions:- CIT vs. Agricultural Produce Marketing Committee 2001 (165) CTR Del. 298 Agricultural Produce Marketing Committee vs. CIT 1996 (57) ITD 109 (Del) 4. Learned Authorized Representative for the Department submitted that the present issue is squarely covered by the decision of Hon'ble Supreme Court in the case of Krishi Upaj mandi Samiti versus. Commissioner of Central Excise Service Tax, Alwar 2022(58) G.S.T.L. 129 (S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any of the conditions laid down in the notification is not fulfilled, the party is not entitled to the benefit of that notification. An exception and/or an exempting provision in a taxing statute should be construed strictly and it is not open to the Court to ignore the conditions prescribed in the relevant policy and the exemption notifications issued in that regard. 8.2 The exemption notification should be strictly construed and given a meaning according to legislative intendment. The Statutory provisions providing for exemption have to be interpreted in light of the words employed in them and there cannot be any addition or subtraction from the statutory provisions. 8.3 As per the law laid down by this Court in a catena of decisions, in a taxing statute, it is the plain language of the provision that has to be preferred, where language is plain and is capable of determining a defined meaning. Strict interpretation of the provision is to be accorded to each case on hand. Purposive interpretation can be given only when there is an ambiguity in the statutory provision or it results in absurdity, which is so not found in the present case. 8.4 Now, so far as the submission on behalf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provide the land/shop/platform/space on rent/lease then and then only it can be said to be a mandatory statutory obligation otherwise it is only a discretionary function under the statute. If it is discretionary function, then, it cannot be said to be a mandatory statutory obligation/statutory activity. Hence, no exemption to pay service tax can be claimed. 10 . The next provision relied upon by the appellants - respective Market Committees is Rule 45 of the Rajasthan Agricultural Produce Markets Rules, 1963 (hereinafter referred to as Rules, 1963 ), which reads as under :- 45. The Market Committee fund. - All money received by the Market Committee shall be credited to the fund called the Market Committee fund. Except where Government on application by the Market Committee or otherwise shall direct, all money paid into the Market Committee fund shall be credited at least once a week in full into Government treasury or sub-treasury, or a bank duly approved for this purpose by the Director. All balance from the fund shall be kept in such treasury or sub-treasury or bank and it shall not be withdrawn upon except in accordance with these rules. 10.1 Now, so far as the submission on beh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax on such service/activity as provided under the 2006 circular, which as observed hereinabove has no substance. 12 . In view of the above and for the reasons stated above, all these appeals fail and the same deserve to be dismissed and are accordingly dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs. 7. In view of the same, we hold that there is no infirmity in the impugned order. We now take up the other major argument of the ld counsel that the Commissioner adjudicating the case had no jurisdiction as in the present case the adjudicating authority has issued and adjudicated the impugned SCN as an officer appointed u/s 3 of the CGST Act, 2017 for exercise of powers and discharge of duties as provided under the CGST Act, 2017. In this context, we note that adjudication is a quasi-judicial function of the departmental officers of the Central Board of Indirect Taxes and Customs. It is mandatory that a Show Cause Notice (SCN) is issued if the department contemplates any action prejudicial to the assessee. The SCN would detail the provisions of law allegedly violated and ask the noticee to show cause why action should not be initiated ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
