9911796707
TMI Blog2025 (3) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act 1994, defines the term 'service'. Section 65-B (51) of the Finance Act, defines taxable service as - 'taxable service' means any service on which service tax is leviable under section 66B. Section 66B of the Finance Act provides that there shall be levied a tax on the value of all services other than those specified in the Negative List - Section 66D of Finance Act, 1994, provides for the negative list, while Section 93 of the Finance Act provides power to the Central Government to grant exemption for taxable service from service tax. Accordingly, unless the service is one that falls in the negative list or a notification of exemption, the same would fall within the service tax net. This Court in M/s Sapthagiri Cleaning Services Versus The Joint Commissioner of Central Tax Bengaluru, The Deputy Commissioner of Central Tax Bengaluru [2024 (9) TMI 1418 - KARNATAKA HIGH COURT], while considering setting aside of the show cause notice in an identical factual matrix had declined to issue a writ as sought for while observing that the relief sought for required interpretation of work order in the context of the exemption notification and accordingly, relegated the matter to the sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 021 (T-RES) WRIT PETITION NO. 8049 OF 2021 (T-RES) WRIT PETITION NO. 8058 OF 2021 (T-RES) WRIT PETITION NO. 8061 OF 2021 (T-RES) WRIT PETITION NO. 8063 OF 2021 (T-RES) WRIT PETITION NO. 8067 OF 2021 (T-RES) WRIT PETITION NO. 8069 OF 2021 (T-RES) WRIT PETITION NO. 8070 OF 2021 (T-RES) WRIT PETITION NO. 8073 OF 2021 (T-RES) WRIT PETITION NO. 8075 OF 2021 (T-RES) WRIT PETITION NO. 8081 OF 2021 (T-RES) WRIT PETITION NO. 8111 OF 2021 (T-RES) WRIT PETITION NO. 8121 OF 2021 (T-RES) WRIT PETITION NO. 8124 OF 2021 (T-RES) WRIT PETITION NO. 8125 OF 2021 (T-RES) WRIT PETITION NO. 8127 OF 2021 (T-RES) WRIT PETITION NO. 8128 OF 2021 (T-RES) WRIT PETITION NO. 8130 OF 2021 (T-RES) WRIT PETITION NO. 17279 OF 2021 (T-RES) WRIT PETITION NO. 18392 OF 2021 (T-RES) WRIT PETITION NO. 18433 OF 2021 (T-RES) WRIT PETITION NO. 20899 OF 2021 (T-RES) WRIT PETITION NO. 21379 OF 2021 (T-RES) WRIT PETITION NO. 5204 OF 2022 (T-RES) WRIT PETITION NO. 6345 OF 2022 (T-RES) WRIT PETITION NO. 14140 OF 2022 (T-RES) WRIT PETITION NO. 20789 OF 2022 (T-RES) WRIT PETITION NO. 5150 OF 2023 (T-RES) WRIT PETITION NO. 6187 OF 2023 (T-RES) WRIT PETITION NO. 7219 OF 2023 (T-RES) WRIT PETITION NO. 10103 OF 2023 (T-RES) WRIT PETIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shwara Enterprises Versus The Joint Commissioner Of Central Tax Bengaluru, The Assistant Commissioner Of Central Tax Bengaluru, Principal Commissioner Of Central Tax GST Commissionerate, Bengaluru, THE Additional Commissioner Bengaluru, South Office Of The Commissionerate Of Central Tax, Bengaluru, The Deputy Commissioner Of Central Tax Bengaluru. For the Petitioners: (By Sri Vijayanth Babu N.S., Advocate). By Sri Pradyumna Hejib, Advocate, For the Respondents: (By Sri Hema Kumar K, A.G.A. For R1; Sri Madanan R. Pillai, C.G.C., For R2; Sri S.N. Prashanth Chandra, Advocate For R3; Sri Jeevan J. Neeralgi, Advocate For R4 To R7)., Sri K.S. Mallikarjun Reddy, Advocate For R3; Sri Madanan R. Pillai, Cgc For R4; Sri Aravind V. Chavan, Advocate For R5 To R8; Sri K.M. Shivayogiswamy, Advocate For R6).; Sri Akash B. Shetty, Advocate For R4 To R6; Sri B.S. Venkatanarayana, Advocate For R3) Smt. Vanitha K.R., Advocate For R4 To R6) Sri N.R. Jagadeswara, Advocate For R3; Sri H. Devendrappa, Advocate For R3; Smt Geethadevi M.P., Advocate For R3; Sri Aravind V. Chavan, Advocate For R4 To R7), Sri Anuporna Bordoloi, Advocate For R3; Smt Preetha Mahadevan, Advocate For R3; Smt Thimmappa Naik, Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Entry No. 39, services by a Government Authority by way of any activity in relation to any function entrusted to a municipality under 243W of the Constitution of India, which Article refers to functions entrusted to Municipalities including those listed in XII Schedule, at Item Sl.No. 6 of Schedule XII includes solid waste management, accordingly, it is submitted that such services rendered relating to solid waste management are exempt from the tax net. 7. It is further contended that after coming into force of Goods and Service Tax Act [GST Act], the Schedule provided for an exemption of Services from levy of service tax in terms of Sl. No. 34 as regards such services by Government, local Authority or Governmental authority carrying out of any activity in relation to any function ordinarily entrusted to a Municipality under Article 243W of Constitution of India in relation to solid waste management. 8. In light of such exemption it is submitted that notices issued under Section 73 of the Finance Act, 1994 r/w Section 174 of Central Goods and Service Tax Act, 2017 are without jurisdiction as question of service of notice would be only on the person chargeable with Service Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that in terms of Section 65-(B) (51) of the Finance Act 1994, 'taxable service' means any service on which service tax is leviable under section 66-B of the Finance Act. 13. Section 66-B of the Finance Act 1994, provides that there shall be levied a tax on the value of all services other than those specified in the Negative List. Accordingly, it is contended that any service rendered which falls within the definition of service is taxable unless specified in the Negative List or is otherwise exempted by a notification issued under Section 93 of the Finance Act. 14. It is further submitted that every person liable to pay service tax shall himself assess the tax due and furnish a return. 15. It is contended that an analysis of the contract signed and the work order would indicate that the contractors are supplying manpower to undertake activities "in relation to" waste management activities of a local authority. Such activity no doubt was exempted under the notification No. 25/2012-ST dated 20.06.2012, as the applicable notification provided "carrying out any activity in relation to any function ordinarily entrusted to a municipality..." which words were however deleted as pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar K, learned AGA appearing for respondent No. 1, Sri S.N. Prashanth Chandra, learned counsel appearing for respondent No. 3, Sri Madanan R. Pillai, learned CGC appearing for respondent No. 4, Sri Jeevan J. Neeralgi, learned counsel appearing for respondents 5 to 7 in W.P. No. 3387/2021; Sri Hema Kumar K, learned AGA appearing for respondent No. 1, Sri S.N. Prashanth Chandra, learned counsel appearing for respondent No. 2, Sri Jeevan J. Neeralgi, learned counsel appearing for respondent No. 3, Sri Aravind V. Chavan, learned counsel appearing for respondents 4 to 6 in W.P. No.8049/2021; Sri. Hema Kumar K, learned AGA appearing for respondent No. 1, Sri. S.N. Prashanth Chandra, learned counsel appearing for respondent No. 2, Sri. B.S. Venkatanarayana, learned counsel appearing for respondent No. 3, Sri Aravind V. Chavan, learned counsel appearing for respondents 4 to 6 in W.P.Nos.8058/2021, 8061/2021, 8063/2021, 8067/2021, 8069/2021, 8075/2021, 8128/2021; Sri. Hema Kumar K, learned AGA appearing for respondent No. 1, Sri. S.N. Prashanth Chandra, learned counsel appearing for respondent No. 2, Sri. B.S. Venkatanarayana, learned counsel appearing for respondent No. 3, Sri Akash B. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned CGC appearing for respondent No. 2, Sri S.N. Prashanth Chandra, learned counsel appearing for respondent No. 3, Sri. H. Devendrappa, learned counsel appearing for respondent No. 3; Sri Jeevan J. Neeralgi, learned counsel appearing for respondents 4 to 9 in W.P. No. 20899/2021; Sri Hema Kumar K, learned AGA appearing for respondent No. 1, Sri Madanan Pillai R, learned CGC appearing for respondent No. 2, Smt. Geethadevi M.P., learned counsel appearing for respondent No. 3, Sri Aravind V. Chavan, learned counsel appearing for respondents 4 to 7 in W.P. No. 21379/2021; Sri Hema Kumar K, learned AGA appearing for respondent No. 1, Sri K.S. Mallikarjun Reddy, learned counsel appearing for respondent No. 2, Smt. Vanita K.R., learned counsel appearing for respondent No. 3, Sri Akash B. Shetty, learned counsel appearing for respondents 4 to 6 in W.P. No.5204/2022; Sri Hema Kumar K, learned AGA appearing for respondent No. 1, Sri B.S.Satyananda, learned counsel appearing for respondent No. 2, Sri Jeevan J. Neeralgi, learned counsel appearing for respondents 3 and 6, Sri Akash B. Shetty, learned counsel appearing for respondents 4 and 5 in W.P. No. 6345/2022; Sri Hema Kumar K, learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sri Hema Kumar K, learned AGA appearing for respondent No. 1, Sri B.L.Sanjeev, learned counsel appearing for respondent No. 2, Sri. Nagendra A, learned counsel appearing for respondent No. 3, Sri. Jeevan J. Neeralgi, learned counsel appearing for respondents 4 and 5, Sri. Shishira Amarnath, learned counsel appearing for respondents 6 to 8 in W.P. No. 26195/2023; Sri Akash B. Shetty, learned counsel appearing for respondent No. 2 in W.P. No. 27620/2023; Sri Hema Kumar K, learned AGA appearing for respondent No. 1, Sri. S. N. Prashanth Chandra, learned counsel appearing for respondent No. 2; Sri Thimmanna Bhat, learned counsel appearing for respondent No. 3, Sri Jeevan J. Neeralgi, learned counsel appearing for respondents 4 to 6 in W.P. No. 27633/2023; Sri Hema Kumar K, learned AGA appearing for respondent No. 1, Sri. K.B. Monesh Kumar, learned counsel appearing for respondent No. 2, Sri. M.N.Kumar, learned counsel appearing for respondent No. 3, Sri Jeevan J. Neeralgi, learned counsel appearing for respondents 4 to 6 in W.P. No. 6979/2024; Sri Hema Kumar K, learned AGA appearing for respondent No. 1, Sri. S.N. Prashanth Chandra and Sri. K.B. Monesh Kumar, learned counsel appearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions seeking setting aside of show cause notice on the ground of exemption or non-chargability to service tax are to be disposed off on different grounds. 23. The court cannot at this stage in exercise of Writ Jurisdiction intervene at the stage of issuance of show cause notice. The interpretation of the work orders/ contracts would be necessary in order to arrive at a conclusion as regards non chargeability or as regards the application of exemption notification. It is relevant to note the observations made by the Apex Court in Union of India and another v. VICCO Laboratories (2007) 13 SCC 270, wherein it is held that the Writ Courts could interfere at the stage of show cause notice only under exceptional circumstances and when factual adjudication is warranted, the interference by the Writ Court is ruled out. The observations made are as follows: "31. Normally, the writ court should not interfere at the stage of issuance of show-cause notice by the authorities. In such a case, the parties get ample opportunity to put forth their contentions before the authorities concerned and to satisfy the authorities concerned about the absence of case for proceeding against the person aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.2021 20789/2022 M. Soma Reddy Show Cause Notice SCN No.19/2021/JC/AE/ST dated 19.04.2021 21347/2023 Krishnappa Prabhakar Show Cause Notice SCN No.26/ST/2022-23 dated 27.04.2022 8069/2021 Chandra Reddy Show Cause Notice SCN No. 80/2019-20 dated 08.11.2019 27620/2023 P. Thyagarajulu Reddy Order-in-Original A. No. 221/2023 dated 02.05.2023 8067/2021 M/s. Sri Ramanjaneya Swamy Prasann, HUF Show Cause Notice SCN No. 49/Commr/ST/2019 dated 11.11.2019 5204/2022 R. Shankar Reddy Show Cause Notice SCN No. 289/2020-21 AC-SD5 dated 27.10.2020 21379/2021 M/s. Sri Ramanjaneya Prasanna Enterprises Pvt. Ltd. P. Vijaydeva Reddy Show Cause Notice Sl.No.83/2019-20 (ST) dated 11.11.2019 Show Cause Notice Sl.No.86/2019-20 (ST)dated 11.11.2019 17279/2021 Y.A. Dhanashekar Madhu Sudhan Show Cause Notice DIN-174/2021 dated 26.04.2021 Show Cause Notice Sl.No. 35/2019-20 dated 30.01.2020 Suresha Show Cause Notice DIN No. 3216/2020 dated 24.06.2020 Sake Narayana Pallavi Order-in-Original OIO No. 16/2021-22 dated 26.08.2021 M/s. K.P.S.Enterprises Order-in-Original OIO No. 04/2021-22 dated 20.07.2021 C. N. Ganesh Order-in-Original OIO No. 06/2021-22 Dated 18. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2023 Gangadharaswamy Muniyappa Order-in-Original OIO No. 174/2022-23 dated 31.01.2023 7219/2023 M/s. Balaji Cleaning & Transport Associates Order-in-Appeal OIA No. 137/2022-23 Dated 06.01.2023 6187/2023 M/s. RPB Enterprises Show Cause Notice SCN No. 10/2022-23 dated 04.04.2022 M/s. Bharath Kumar Enterprises Order-in-Original OIO No. 190/2022-23 Dated 28.02.2023 8070/2021 C. V. Rajnikanth Reddy Show Cause Notice SCN No. 53/2019-20 dated 11.10.2019 3387/2021 M/s. Ganesh Shankar Environmental Solutions Pvt. Ltd. Show Cause Notice SCN No. 5493/2020 dated 04.12.2020 5085/2020 M/s. Shodashi Enterprises Show Cause Notice SCN No. 97/2017-18 Dated 11.10.2019 M/s. OLN Enterprises Show Cause Notice SCN No. 15/55/2019 dated 11.11.2019 M/s. Laxmi Enterprises Show Cause Notice SCN No. 06/63/2019 Dated 13.11.2019 M/s. SPT Enterprises Show Cause Notice SCN No. 15/52/2019 Dated 11.11.2019 M/s. Sri. Lakshmi Enterprises Show Cause Notice SCN No. 15/31/2019 Dated 08.11.2019 M/s. Annapoorneshwar i Enterprises Show Cause Notice SCN No. 15/50/2019 Dated 11.11.2019 5024/2020 M. Soma Reddy Show Cause Notice SCN No. 22/2019 Dated 11.10.2019 K. Uma Maheshwara Rao Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t show cause notice reserving liberty to file additional reply and to file reply if not already filed permitting the assessees to raise all other contentions in support of their case of being within the exemption notification or outside the service tax net, the other writ petitions raising identical grounds assailing the adjudicating order (Order-in-Original) are also allowed by setting aside the adjudicating order and relegating the assessees to the same stage of post show cause notice. Such order is passed noticing substantial contentions are raised in matters where show cause notices are assailed. To prevent passing of conflicting orders, it would be appropriate to relegate even where adjudicating orders are passed to post cause notice stage, to enable adjudication of all matters with a uniform approach as regards common legal questions raised. 28. Insofar as the contention of the petitioners that taxable services are chargeable under the reverse charge mechanism, the notification No. 30/2012-ST dated 20.06.2012 provides for "taxable services provided or agreed to be provided by way of renting of a motor vehicle designed to carry passengers to any person who is not in the simil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e period from October, 2014 to June, 2017. It must be noticed that the show cause notice was adjudicated and the taxable value of the services was re-quantified and the demand of service tax was confirmed of Rs. 1,11,13,488/- along with appropriate interest and penalty. The appeal was filed against the order-in-original of the Joint Commissioner of Central Tax who had adjudicated on the show cause notice. The grounds in appeal were to the effect; that the services of the petitioner provided to the Corporation / Municipality was wrongly classified as "Manpower Supply Services", instead of "Solid Waste Management / Cleaning Services"; that the services provided by the petitioner to the Municipality / Corporation is in the nature of Solid Waste Management and are non-taxable in terms of Article 243W of the Constitution and construed as exempted services. (iii) The order-in-appeal confirmed the order-in-original by reiterating the findings that the services rendered were to be classified as "supply of manpower". It was further held that the exemption was provided at Sl. No. 25(a) of the exemption notification No. 25/2012-ST which provided for exemption only as regards solid waste man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23; 8070/2021; 3387/2021; 5085/2020; 5024/2020 wherein petitioners assailing the show cause notices are relegated to the stage of post-show cause notice reserving liberty to file reply / additional reply permitting them to take up contentions as raised in the present writ petitions and otherwise. (ii) In W.P.Nos.6979/2024; 27620/2023; 17279/2021; 9114/2024; 18392/2021; 9522/2021; 10103/2023; 6187/2023, the adjudicating orders (Order-in-Original) are set aside and matters are remitted to the stage of post-show cause notice. Liberty is reserved to file additional reply apart from the reply, if any already submitted to the Show Cause notice, permitting the petitioners to take up contentions as raised in the present writ petitions and otherwise. All consequential proceedings pursuant to the impugned orders are set aside. (iii) Both the sets of proceedings now being relegated to post show cause notice stage, may be withdrawn by the competent authority and assigned to common set of officers to ensure uniformity in approach. This would ensure that all assesses are treated alike and may not be subjected to different points of views of different officers. (iv) In W.P. No. 7219/2023, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
