Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Dept. Can’t Classify Product as Zarda Scented Tobacco After Repeatedly Approving It As Chewing Tobacco: CESTAT *  Mere Uploading Of GST Order On Portal Is Not “Valid” Service: Tripura HC *  CGST Can Proceed Even If SGST Closed Similar Case Earlier: Delhi HC *  SC upholds 28% GST on online gaming with retrospective effect. *  West Bengal Govt cuts E-way Bill Threshold limit to Rs. 50,000 for intra-state goods movement. *  Criminal Prosecution Under Central Excise Act Can’t Continue After CESTAT Sets Aside Duty Demand on Merits: Punjab & Haryana High Court. *  Madras High Court Quashes GST Assessment Orders for Denial of Personal Hearing; Remands Matter Subject to 10% Deposit *  Ex Parte GST Order: Madras High Court Directs Immediate Removal of Bank/ITC Attachment Upon 25% Deposit *  J.K. Cement Receives GST Demand Order of Rs 8,02,113/- from Ahmedabad Tax Authority *  Delhi Police EOW Busts Alleged Rs. 128 Crore GST Fake Invoice Network. *  REPLY TO SCN CAN’T BE TREATED AS “EMPTY FORMALITY”: ORISSA HIGH COURT QUASHES GST DEMAND OF RS. 57.30 LAKH *  Challenge to CGST Provisions restricting ITC to Bonafide Purchasers : Allahabad HC issues notice *  CBIC Notifies Revised Customs Tariff Values for Edible Oils, Gold, Silver, Brass Scrap and Areca Nuts *  Delhi HC Orders Removal of GST Attachment After Statutory 1 Year Period Expired *  GSTAT Extends Relaxed Appeal Filing Guidelines till December 31, 2026 *  AO fails to Provide Import - Export Data from DGFT to Taxpayer for Reconciliation *  Gold, Silver Imports To Get Costlier As Govt Raises Customs Duty To 10%  *  GSTAT Enables Pre-Payment Access to Document Upload and Checklist for GST Appeal Filing *  GST Portal Restrictions Can’t Override Statute: Gujarat HC Allows Cross-State Transfer Of CGST ITC After Amalgamation *  Centre Revises HS Codes for Large Diameter Steel Pipes Used in Oil & Gas Pipelines *  Customs Duty Liability Arises On Warehouse Clearance Date: Supreme Court *  Government lifts export ban on de-oiled rice bran *  CESTAT Grants 12% Interest on Pre-Deposit for Investigation from Date of Deposit till Refund and Denies Interest on Interest. *  Government Overhauls GST Classification Framework for Non-Alcoholic Beverages; Fruit Juice Drinks, Milk-Based Beverages and Caffeinated Drinks to Attract Revised 5% and 40% GST Rates from May 1, 2026 *  India’s gross GST collections hit a record Rs 2.42 lakh crore in April, up 8.7% *  Customs clearance stalled, revenue hit over MRP dispute *  Shipping Corporation explores Middle East routes as Hormuz tensions disrupt cargo movement *  India, Kenya signs MoU for exchange of pre-arrival customs information *  No demand of Taxes under Reverse Charge if Tax Already Discharged by Service Provider under forward charge *  The India-New Zealand Free Trade Agreement, signed "once-in-a-generation" deal that eliminates tariffs on 100% of Indian exports to New Zealand
Subject News *  Consignment Sales Can’t Be Reclassified as Inter-State Sales Based on Pre-Agreement Evidence: CESTAT *  Exporter Can’t Be Denied Advance Authorization Benefit Due To ICEGATE Technical Glitch: Delhi High Court *  No GST Demand For Mere Wrong Set-Off Of IGST Credit Under CGST And SGST Heads: Kerala HC. *  Cenvat Credit Can’t Be Denied on Input Services Having Nexus With Manufacturing Activities: CESTAT *  Pending Proceedings Can’t Survive Without Saving Clause: Calcutta High Court Quashes GST Demand of Rs. 6.28 Crore After Omission of Rule 96(10) *  Madras HC Quashes GST Demands on TASMAC (Tamil Nadu State Marketing Corporation) Bar Licence Fee *  GST Proceedings Cannot Survive Omitted Rule Without Saving Clause: Calcutta HC *  Provisional Release Can’t Be Denied Solely On Dept. Suspicion Of Misclassification And Undervaluation Of Imported Goods: CESTAT *  Businesses Should Not Be Kept Outside GST Regime Without Due Process: Gauhati High Court *  Punjab & Haryana HC Directs Reconsideration of Contractors’ Claim for Additional GST Payment After Tax Rate Hike From 12% to 18% *  S. 108 Statements Can’t Be Sole Basis Without Following Section 138B Procedure: CESTAT *  Bombay High Court Frames Key Questions on Mandatory Distribution of ITC U/s 20 CGST Act *  Filing of Annexure-B for Refund Applications involving Accumulated ITC using the offline utility in GST portal: GSTN *  No Service Tax on Parent Company’s Un-Invoiced Cost Allocations Without Actual Service or Consideration: CESTAT  *  Calcutta High Court Upholds GST Classification of Polypropylene Leno Bags as Plastic Products *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  GSTAT Issues Major Bench Allocation Framework; All Appeals to First Go Before Division Bench *  ITC Blocking Without Reasoned Order Violates Rule 86A; Punjab & Haryana HC Directs Release of Credit *  Allahabad HC Refuses Bail to CGST Superintendent In Rs. 70 Lakh Bribery Case *  S.130 Can’t Be Invoked Without Prior Tax Determination U/s 73/74: Allahabad High Court Quashes GST Confiscation Proceedings *  SC grants Bail to Rs 54cr GST case  *  Karnataka HC Sets Aside Duplicate GST Orders, Orders Fresh Hearing on GSTIN Cancellation *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  Transfer Of Unutilized ITC After Amalgamation - Supreme Court Issues Notice *  PUNJAB & HARYANA HC QUASHES GST CANCELLATION NOTICE FOR FAILURE TO PROVIDE CBIC ENQUIRY REPORT *  LICENSE FEE, TECHNICAL ASSISTANCE CHARGES NOT INCLUDIBLE IN CUSTOMS VALUE UNLESS THEY ARE A CONDITION OF SALE: CESTAT *  DELHI HC ORDERS REMOVAL OF GST ATTACHMENT AFTER STATUTORY 1 YEAR PERIOD EXPIRED *  CUSTOMS BROKER CAN’T BE FAULTED JUST BECAUSE EXPORTER’S GST REGISTRATION WAS PREVIOUSLY CANCELLED: CESTAT   *  Supreme Court Dismisses Review Plea Against Delhi HC Ruling Holding Real Operator Behind Fake GST Firms Liable As ‘Taxable Person  *  GST Appeal Can’t Be Rejected Merely Because DRC-07 Was Not Uploaded On Portal: Bombay High Court  

Comments

Print   |    |  Comment

PJ/Case Laws/2010-11/1039

Exercise of Writ Jurisdiction at Show Cause Notice stage
Case: M/s L R Sharma & Co v/s Union of India & ORS
 
Citation: 2011-TIOL-07-HC-DEL-ST 

Issue:-Whether the writ jurisdiction can be exercised at the stage of show cause notice itself? Whether the public utility services like laying of pipelines for carrying of drinking water, sewerage, untreated effluent water for Delhi Jal Board will be liable for service tax?
 
Brief Facts:- Petitioner is engaged in laying of long distance pipelines for the purpose of carrying of drinking water, sewerage, untreated effluent water for Delhi Jal Board. Department alleged that the said service was a taxable service and Petitioner was liable to pay service tax for providing the said service.
 
Petitioner had made a representation to the Revenue that they were not liable to pay the service tax as the activities carried on by it pertain to the public utility service on behalf of the Delhi Jal Board and Delhi Metro Rail Corporation Ltd. Representation was rejected. Thereafter, writ petition was filed and order was passed providing that as this was only a preliminary inquiry and not demand, taking of coercive action did not arise. It was also provided that the concerned authority was required to give an opportunity of hearing to the petitioner.
 
Thereafter, Revenue issued show cause notice to the petitioner. Against the issuance of show cause notice, petitioner has filed writ petition before the High Court. 
 
Petitioner’s Contentions:- Petitioner has prayed for issue of writ of Certiorari for quashing of the show cause notice on the ground that the same is without jurisdiction and violative of the provisions of law and further to issue a writ of Mandamus/ direction declaring that the provisions is not liable to pay service tax in respect of laying of long distance pipelines.
 
Petitioner submitted that the notice to show cause is absolutely vulnerable as the levy is totally impermissible. Reference is made to various provisions of the Finance Act, 1994 and to the Circular No. 80/10/2004-ST which has clarified, as pleaded, that the construction of the buildings which are used by government organization established for charitable or philanthropy purposed, etc. are non-commercial in nature and would not attract service tax.
 
Petitioner also referred to the amendment that was incorporated in the Finance Act, 1994 by the Act by introducing another taxable service as “Works Contract” of the Finance Act, 1994 and in the service tax vide notification No. 23/2007 dated 22.5.2007. Also drawn inspiration from the Circular No. 123/5/2010-TRU dated 24.5.2010 whereby the certain aspects have been clarified.
 
It was urged by the petitioner that in order passed pursuant to their representation that no coercive action would be taken against them. It was submitted that despite of this order, Revenue have taken a decision directing the petitioner to submit various documents including ST-2 registration certificate, complete contracts for all works done, year wise bills for providing and copy of audited balance sheets for the period 2005-06 to 2009-10.
 
It is contented that the same has been demanded regardless of the said order passed by this court and a show cause notice has been issued. Petitioner submitted that the show cause notice is barred by limitation. Petitioner has relied upon the decisions rendered in A. Suresh v. State of Tamil Nadu [AIR 1997 SC 1889], Gupta Sanitary Stores v. Union of India [AIR 1985 Del. 122, 132 (FB)], Sub-Divisional Inspector of Post, Vaikam and others v. Theyyam Jospeh and others [AIR 1996 SC 1271], Baktawar Singh Bal Kishan v. UOI & Ors. [(1988) 2 SCC 293], CC, Calcutta & Others v. Indian Oil Corporation and another [(2004) 3 SCC 488], ITW Signode India Ltd. V. Collector of Central Excise [2003 (158) E.L.T. 403 (SC)], Hindustan Poles Corporation v. Commissioner of C. Ex., Calcutta [2006 (196) E.L.T 400 (SC)] andState of Punjab v. Bhatinda District Co-op. Milk P. Union Ltd. [2007 (217) E.L.T. 325 (SC)].
 
Respondent’s Contentions:- Respondent submitted that in the notice to show cause the statutory provisions have been referred to and a prime facie opinion has been formed but that does not necessarily mean the stand and stance put forth by the petitioner has been totally brushed aside. Moreover, an opportunity of hearing has been extended in the show cause notice to the petitioner.
 
Reasoning of Judgment:- The High Court found that the plea of the Petitioner is that it is not required to get itself registered and is not liable to pay service tax. There can be no bar that the petitioner cannot contented before the statutory authority that it is not liable to pay the service tax and hence, there is no necessity for getting itself registered.
 
Further, the High Court perused the judgment relied upon by the petitioner in the cases of ITW Signode India Ltd, Bhatinda District Co-op Milk P. Union Ltd and Hindustan Poles Corporation.
 
On a perusal of the aforesaid decisions, the High Court was of the opinion that the present notice to show cause is not a one where the question of limitation can be decided straightaway on law without adverting to intrinsic facts. It is also not a case where it can be said that the revenue has sent an indiscriminate show cause without proper application of mind.
 
In the opinion of the High Court the issues involved in this case require to be adjudicated by the Adjudicating Authority and the show cause notice on the grounds urged cannot be lanceted. Liberty was granted for filing reply within prescribed time as the reply to the show cause has not been filed.
 
Decision:- Petition disposed off accordingly.
 
Comment:- The first issue in this decision is that the writ cannot be filed at the issuance of show cause notice. The alternative remedy is available with the party. The second issue is that whether the laying of pipelines for drinking water is chargeable to service tax under “Commercial construction services”. The wording under this service is that it should be for commerce or industry. But this is not for commerce or industry. The department has changed the stand now and says that it falls under installation and commissioning. There is no clause under these categories that it should be used for commerce or industry. Even while classifying under works contract also, they say that laying of pipeline is not construction service but it is installation of pipeline.    

************
 

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com