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Apr Packaging Ltd. Versus Union of India

2016 (10) TMI 190 - BOMBAY HIGH COURT

Constitutionality 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 .....

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vices 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. Guj .....

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ion to this fact and also to the legal position that the petitioner being responsible in law to collect the service tax, it should have filed returns. By Paragraph 5 of its communication, it was called upon to file return by due date. 2. In writ petition, the prayer is to declare that the proviso to Section 68 of the Finance Act, 1994, as amended in 2003 and Rule 7A of the Service Tax Rules, 1994, are unconstitutional. 3. After hearing Shri Naik, learned counsel for the petitioner, we .....

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on rendering it. 4. By Section 158 of the Finance Act, 2003, a proviso has been added to Section 68 and by proviso (i), a person, who engages Clearing and Forwarding Agent, has been made responsible for collection of tax. By proviso (ii), a person who avails services of goods transport operator, has been entrusted with liability to collect tax. The provisions of Section 7A of the Service Tax Rules, 1994, as amended by Service Tax Management Rules, 2003, obliges an assessee i.e. present peti .....

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608 (S.C.) = 2005 (182) E.L.T. 33 (S.C.). The discussion in said judgment in Paragraphs 20 to 22 and thereafter from Paragraph 37 onwards up to Paragraph 39 is relevant for the present matter. The Hon ble Apex Court has looked into its earlier judgment mentioned supra and in Paragraph 19 framed a question whether by enacting Sections 116 and 117 of the Finance Act, 2000 and Section 158 of the Finance Act, 2003, base on which it (Supreme Court) struck down Rules 2(1)(d)(xii) & (xvii) of Serv .....

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