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2016 (10) TMI 190 - HC - Service TaxConstitutionality of proviso to Section 68 of the Finance Act, 1994, as amended in 2003 and Rule 7A of the Service Tax Rules, 1994 - GTA services - Held that:- the Hon’ble Apex Court has considered the submission that as body of the Section 68 did not cover the subject matter, there was no question of creating an exception in respect thereto by any proviso. The contention was thus by adding proviso (i) and (ii), the scope of original Section 68 could not have been enlarged. In Paragraph 38, the Hon’ble Apex Court has held that Section 68 is a machinery section which provides for incidence of tax while charging section is Section 66. 2000 Amendment to Section 66 changed the point of collection of tax from provider of service to “such manner as may be prescribed”. It has been found that the Service Tax Rules, 1994 provided for collection and recovery of tax from users or payers for the services and proviso to Section 68 prescribes the procedure for collection with reference to services of goods transport operators and clearing agents. In Para 39 the Hon’ble Apex Court has concluded that the proviso do not in any manner expand the subsection and in fact it gives effect to it. In the light of this later judgment delivered by the Hon’ble Apex Court, it is apparent that the communication dated 7-11-2003 is in consonance with the amended provisions after the Finance Act, 2003. The validity of this procedure is already upheld by the later judgment of the Hon’ble Apex i.e. Gujarat Ambuja Cements Ltd. & Anr. v. Union of India & Anr. [2005 (3) TMI 492 - SUPREME COURT]. - Decided against the appellant
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