TMI Blog2012 (8) TMI 881X X X X Extracts X X X X X X X X Extracts X X X X ..... s, therefore, quashed. Appeal allowed. - Special Civil Application No. 1173 of 2005 - - - Dated:- 29-8-2012 - AKIL KURESHI AND HARSHA DEVANI , JJ. For the Appellant : Paresh M. Dave For the Respondents : Ms. Sejal K. Mandavia JUDGMENT :- The judgment of the court was delivered by AKIL KURESHI J. The petitioners have challenged two show-cause notices dated October 15, 2004 and November 9, 2004 annexed at annexure-H collectively to the petition in the following factual background: 1.1. Petitioner No. 1 is a company registered under the Companies Act, 1956 and petitioner No. 2 is its office bearer. The petitioners are engaged in the business of manufacture of various industrial products. For the purpose of manu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not be collected from the petitioners. 3. Counsel pointed out that the apex court in the case of Laghu Udyog Bharti v. Union of India [1999] 115 STC 616 (SC); [2005] 1 VST 24 (SC); [1999] 112 ELT 365 (SC), in the context of goods transport agents held that in the absence of any charging section, liability of collection of service tax on such service cannot be shifted on the service recipient. 4. Counsel relied on the decision of the Division Bench of this court in the case of CST v. Quintiles Data Processing Centre (I) P. Ltd. [2012] 54 VST 398 (Guj); [2011] 23 STR 15 (Guj), wherein relying on the decision of the apex court in the case of Laghu Udyog Bharti v. Union of India [1999] 115 STC 616 (SC); [2005] 1 VST 24 (SC) and other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2003 to March 31, 2004. At such time section 66A was not introduced in the parent Act. With effect from April 18, 2006, the Legislature has introduced section 66A, which reads as under: 66A. (1)Where any service specified in clause (105) of section 65 is, (a) provided or to be provided by a person who has established a business or has a fixed establishment from which the service is provided or to be provided or has his permanent address or usual place of residence, in a country other than India, and (b) received by a person (hereinafter referred to as the recipient) who has his place of business, fixed establishment, permanent address or usual place of residence, in India, such service shall, for the purpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d relying upon the decision of the apex court in the case of Laghu Udyog Bharti [1999] 115 STC 616 (SC); [2005] 1 VST 24 (SC) and the decision of the Bombay High Court in the case of Indian National Shipowners Association v. Union of India [2009] 21 VST 60 (Bom); [2009] 13 STR 235 (Bom) and the decision of the Delhi High Court in the case of Unitech Ltd. v. CST [2009] 15 STR 385 (Delhi), and observed as under (page 403 of 54 VST): This rule for the period prior to April 18, 2006 and; in particular in the absence of section 66A of the Finance Act, 1994 came up for consideration before the Bombay High Court in the case of Indian National Shipowners Association [2009] 21 VST 60 (Bom). Relying on the decision of the apex court in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not be made liable to pay the tax. It is of course true that in the concluding portion, the Bench observed that the person who receives service outside India from a person who is a non-resident cannot be made to pay service tax. To our mind, however, this is not the ratio of the decision and the entire decision is based on the ratio laid down by the apex court in the case of Laghu Udyog Bharti [1999] 115 STC 616 (SC); [2005] 1 VST 24 (SC). The Bombay High Court's observations relevant for our purpose may be noted thus (page 73 of 21 VST): 20. It appears that a similar provision in the rules was made applicable by the Government in relation to the clearing agents by making customers of the clearing agent liable for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In other words, it is only after enactment of section 66A that taxable services received from abroad by a person belonging to India are taxed in the hands of the Indian residents. In such cases, the Indian recipient of the taxable services is deemed to be a service provider. Before enactment of section 66A, there was no such provision in the Act and therefore, the respondents had no authority to levy service tax on the members of the petitioners-association.' We also notice that the Delhi High Court in the case of Unitech Ltd. [2009] 15 STR 385 (Delhi) relying on the decision of the Bombay High Court in the case of Indian National Shipowners Association [2009] 21 VST 60 (Bom), deleted the tax demand from the assessee who was a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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