TMI Blog2022 (5) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... sued by the respondent authorities, demanding service tax towards 'non taxable services'; and the appellant was simply directed to approach the appellate authority by filing statutory appeals, after having observed that the issues involved are factual in nature. This court is of the view that such course adopted by the learned Judge cannot be countenanced. Therefore, the order of the learned Judge dated 17.06.2021 passed in the writ petitions is liable to be set aside and is accordingly, set aside. Consequently, the matters are remanded back to the authority concerned for fresh consideration. Appeal disposed off. - Writ Appeal Nos.2807, 2808 & 2857 of 2021 And C.M.P. Nos. 18512, 19051, 18516 of 2021 - - - Dated:- 30-3-2022 - Honourable Mr. Justice R. Mahadevan And Honourable Mr. Justice J.Sathyanarayana Prasad For the Appellant : Mr. K. Jeyachandran in all the Writ Appeals For the Respondent : No appearance for R1 in all the appeals, Mr.A.P.Srinivas, Senior Standing Counsel for R2 in all the appeals COMMON JUDGMENT R. MAHADEVAN, J. These Writ Appeals are directed against the common order dated 17.06.2021 passed in W.P. Nos. 10179, 11268 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different periods on the non taxable service invoking section 67 of the Finance Act read with Rule 5 of the Service Tax (Determination of Value) Rules and passed order-in-original dated 06.02.2020 for the period from October 2006 to 2007-08. Aggrieved over the same, the appellant preferred Writ Petition Nos.10178, 10179 and 11268 of 2020. 5. The learned Judge, by the order dated 17.06.2021 impugned herein, disposed of the aforesaid writ petitions by concluding that the issues involved are factual and there is a clear finding that break up of service charge received by the appellant has not been produced by them and hence, the appellant was directed to file statutory appeal(s) within a period of 30 days and if any appeal (s) is/are filed by the appellant, the appellate authority shall take it on file, without reference to the limitation and consider on merits and in accordance with law. Challenging the said order dated 17.06.2021 passed by the learned Judge, the appellant has come up with these writ appeals. 6. Heard both sides and perused the materials placed before this court. 7. According to the appellant, though they collected Bank charges, CCTL charges, CFS charges fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to as the service tax) @ 12% of the value of taxable services referred to in sub-clauses of Section 65 and collected in such manner as may be prescribed. 23) Obviously, this Section refers to service tax, i.e., in respect of those services which are taxable and specifically referred to in various subclauses of Section 65. Further, it also specifically mentions that the service tax will be @ 12% of the value of taxable services . Thus, service tax is reference to the value of service. As a necessary corollary, it is the value of the services which are actually rendered, the value whereof is to be ascertained for the purpose of calculating the service tax payable thereupon. 24) In this hue, the expression such occurring in Section 67 of the Act assumes importance. In other words, valuation of taxable services for charging service tax, the authorities are to find what is the gross amount charged for providing such taxable services. As a fortiori, any other amount which is calculated not for providing such taxable service cannot a part of that valuation as that amount is not calculated for providing such taxable service . That according to us is the plain meaning which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taxable services, does not include reimbursable expenses for providing such service, the Legislature amended by Finance Act, 2015 with effect from May 14, 2015, whereby Clause (a) which deals with consideration is suitably amended to include reimbursable expenditure or cost incurred by the service provider and charged, in the course of providing or agreeing to provide a taxable service. Thus, only with effect from May 14, 2015, by virtue of provisions of Section 67 itself, such reimbursable expenditure or cost would also form part of valuation of taxable services for charging service tax. Though, it was not argued by the learned counsel for the Department that Section 67 is a declaratory provision, nor could it be argued so, as we find that this is a substantive change brought about with the amendment to Section 67 and, therefore, has to be prospective in nature. On this aspect of the matter, we may usefully refer to the Constitution Bench judgment in the case of Commissioner of Income Tax (Central)-I, New Delhi v. Vatika Township Private Limited8 wherein it was observed as under: 27. A legislation, be it a statutory Act or a statutory rule or a statutory notification, may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to give the enactment a retrospective effect; unless the legislation is for purpose of supplying an obvious omission in a former legislation or to explain a former legislation. We need not note the cornucopia of case law available on the subject because aforesaid legal position clearly emerges from the various decisions and this legal position was conceded by the counsel for the parties. In any case, we shall refer to few judgments containing this dicta, a little later. 30) As a result, we do not find any merit in any of those appeals which are accordingly dismissed. However, on a perusal of the order impugned herein, it is seen that the aforesaid decision was not taken into consideration by the learned Judge, while hearing the writ petitions filed by the appellant questioning the order / notices issued by the respondent authorities, demanding service tax towards 'non taxable services'; and the appellant was simply directed to approach the appellate authority by filing statutory appeals, after having observed that the issues involved are factual in nature. This court is of the view that such course adopted by the learned Judge cannot be countenanced. Therefore, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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