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TMI Blog2025 (4) TMI 1169X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as Royalty by the Government of Bihar from the Petitioner's Bills in the financial year 2016-17 should not be demanded and recovered along with the applicable rate of interest and applicable penalties under the provisions of Finance Act, 1994 read with the Section 174 of the Central Goods and Service Tax Act, 2017. ii. For the issuance of appropriate writ/writs, order/orders, direction/directions in the nature of Certiorari to quash the order no. 01/2023-24/ST/AC/PURNEA dated 31.10.2023 (Annexure P/4) passed by the Respondent Assistant Commissioner confirming its aforesaid demand cum show cause notice dated 19.04.2022. iii. For any other relief/reliefs that in the facts and circumstances of the case would do complete justice to the Petitioner." Brief Facts of the Case 2. It is the case of the petitioner that the petitioner is a Government Contractor, engaged in the construction and maintenance of roads and also in construction of buildings such as Panchayat Bhawan etc. in the district of Katihar. 3. The petitioner had purchased sand, soil, chips, bitumen, bricks etc. directly from the market for the use in the said works. No good has been supplied by the Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing but an amount paid to the Government or deducted by the Government for giving the "Permission for license" for using natural resources of materials/adjacent land in the State as per norms and rate. It is, thus, an assignment of right to use any natural resource which is a service taxable w.e.f. 01.04.2016 by virtue of Notification No. 22/2016-ST dated 13.04.2016. 8. Respondent no. 2 took a view that the responsibility for payment of service tax in respect of such services by the Government has been on the business entity receiving the service on a Reverse Charge Mechanism ('RCM') Basis . The Notification No. 30/2012-ST dated June 20, 2012 mandated service recipient to discharge service tax under RCM. 9. Respondent no. 2 has mentioned in Annexure 'P/2' that under Notification No. 30/2012, the taxability was limited to the "support services" only but the term "by way of support services" as occuring in the Notification No. 30/2012 was omitted vide Notification No. 18/2016-Service Tax dated 01.03.2016 and thus Negative list under Section 66D of the Act stood amended. In the light of the amended Section 66D, the service tax became leviable on "any service provided by the Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner 15. In this Court, learned counsel for the petitioner has submitted that the impugned notice dated 19.04.2022 is barred by limitation prescribed under Section 73 (1) of the Finance Act, 1994. The notice having been issued after the prescribed period of 18 months from the relevant date is bad in law and the proceeding initiated on that basis would stand vitiated, hence, the demand-cum-show cause notice (Annexure 'P/2') and the subsequent confirmation of the same vide Annexure 'P/4' would be liable to be quashed. 16. Learned counsel submits that the respondent- Assistant Commissioner has issued the impugned show-cause notice on 19.04.2022 for the alleged service provided by the Government in the Financial Year 2016-17. The extended period of five years has been invoked alleging fraud, collusion, wilful mis-statement, suppression of facts and contravention of the provisions of the Finance Act, 1994 but on a bare perusl of the entire facts and the materials, it would appear that the case of the petitioner would not fall in any of the categories which would permit availment of extended period of limitation. 17. Learned counsel has relied upon the judgment of the Hon'ble Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice Tax dated 20.06.2012 as amended w.e.f. 01.04.2016 vide Notification No. 18/2016-Service Tax dated 01.03.2016. Consideration 21. We have heard learned counsel for the petitioner as well as learned ASG for the CGST and CX. So far as the payability of service tax on the payment of royalty is concerned, the same is not in question. The question which arises for consideration in this case is as to whether the respondent no. 2 has acted within his jurisdiction to invoke the extended period of limitation under Section 73 of the Finance Act, 1994. Section 73 (1) of the Finance Act, 1994 reads as under:- "73 (1) Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, Central Excise Officer may, within [thirty months]] from the relevant date, serve notice on the person chargeable with the service tax which has not been levied or paid or which has been short-levied or short-paid or the person to whom such tax refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice : PROVIDED that where any service tax has not been levied or paid or has been short-levied or shor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be, challan shall be serially numbered and shall contain the following, namely :- (i) the name, address and the registration number of such person; (ii) the name and address of the person receiving taxable service; [(iii) description and value of taxable service provided or agreed to be provided; and] (iv) the service tax payable thereon: 24. In paragraph '21' of the writ application, the petitioner has stated that as per Rule 4A of the Service Tax Rules, 1994 inserted on 10.09.2004, it is mandatory that every person providing taxable service shall issue an invoice, a bill or a challan on receipt of payment for the taxable service. No invoice has been issued to the petitioner for the royalty deducted from its bills by the State Government. 25. There is no contest to the averment in paragraph '21' of the writ application. The Executive Engineer, Rural Works Department, Manihari has filed a counter affidavit but the contention of the petitioner based on Rule 4A of the Service Tax Rules has not been denied. In fact, there is an admission of respondent no. 4 that no invoice has been issued to the petitioner for the royalty deducted from its bill by the State Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner is a Government Contractor and the services availed by him has been found exempted under the Mega Exemption Notification No. 25 of 2012. In fact, Annexure 'P/2' clearly admits that the activity of the petitioner is exempted under Mega Exemption Notification No. 25/2012 dated 20.06.2012 and as such no service tax is leviable on the said activity. This Court finds much force in the submission of the petitioner that had the Government Department issued invoice as required under Rule 4A of the Service Tax Rules, 1994, he would have come to know the requirement of payment of service tax and the rate at which it was required to be paid. The relevant Rule which we have taken note of hereinabove is mandatory as it casts a duty upon every person liable for paying the service tax to make an application to the concerned Superintendent of Central Excise in Form ST-1 for registration within the 30 days from the date in which the service tax under Section 66B of the Finance Act is levied. Proviso to Sub-Rule (1) of Rule 4 further says that where a person commences the business of providing a taxable service after such service has been levied, he shall make an application for registra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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