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2016 (11) TMI 1006 - KERALA HIGH COURT

2016 (11) TMI 1006 - KERALA HIGH COURT - TMI - Constitutional validity of levy of service tax on restaurants - Validity of sub clause (zzzzv) of clause 105 of Section 65 of the Finance Act, 1994 - Legislative competency of Parliament - Sale of food and drinks - Whether "taxes on the sale and purchase of goods" in Entry 54 of List II of the seventh schedule covers service in the light of the definition of "tax on sale and purchase of goods" under Article 366 (29A) (f) of the Constitution of India .....

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matter is pending before the Supreme Court. Further, no stay has been granted in the matter. Therefore, right now, I am inclined to follow the law laid down by this Court and accordingly, this writ petition is allowed. The declaration sought for is granted and service tax already collected shall be refunded to the respective parties. - W.P.C.No.19277 of 2013 - Dated:- 31-10-2016 - A.M.SHAFFIQUE, J FOR THE PETITIONER : ADV. SRI.S.ARUN RAJ FOR THE RESPONDENT : SRI.N.NAGARESH, ASSISTANT SOLICITOR G .....

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he restaurant, eating joints or mess, in relation to serving of food and beverages (whether or not intoxicating) having Air Conditioning or Central Air heating in any part of the establishment at any time during the financial year; as 'Declared Service' under section 66E r.w.s 65B(22) and accordingly bringing under the definition of Service under section 65B(44) for the purpose of charging to service tax under section 66B of the Act' is illegal, ultravires, beyond the legislative com .....

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amended by the Finance Act 2012; to the extend it seeks to levy service tax on the service provided by the restaurant, eating joints or mess, in relation to serving of food and beverages (whether or not intoxicating) having Air Conditioning or Central Air heating in any part of the establishment at any time during the financial year is illegal, ultravires, beyond the legislative competence of the parliament and unenforceable and liable to be struck down as unconstitutional, null and void and of .....

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r mess, in relation to serving of food and beverages (whether or not intoxicating) having Air Conditioning or Central Air heating in any part of the establishment at any time during the financial year. 2. The short facts involved in the writ petition would disclose that in the Finance Act, 2012 relating to levy and collection of service tax, a provision has been incorporated by which service provided by restaurant, eating joints or mess, in relation to serving of food and beverages (whether or n .....

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I., legislative competence of which has been upheld in various judgments of the Apex Court. Further, reliance is also placed on the judgment of the Apex Court in Assn. of Leasing & Financial Service Companies v. Union of India [2011(2)SCC 352] and also BSNL v. Union of India [(2006) 3 SCC 1] in order to contend that even if there is overlapping, when the transaction involves two or more taxable events in its different aspects, but overlapping does not detract from distinctiveness of aspects .....

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