TMI Blog2019 (11) TMI 1128X X X X Extracts X X X X X X X X Extracts X X X X ..... by the petitioner by relying on those two Circulars can very well be raised before the Appellate Tribunal, which, undoubtedly, also a fact finding authority, will have to go into the merits of the contentions raised by the petitioner and decide as to whether the Adjudicating Authority has in fact considered the effect of such Circulars while passing the impugned order or not, even though, those two Circulars were not referred to in the impugned order. When such remedy is available to the petitioner and more particularly, when this Court finds that the dispute raised in this writ petition by relying on those two Circulars cannot be considered and decide without going into the factual aspects of the matter, the petitioner has to only resor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e; (ii) Service Tax of ₹ 25,28,69,990/- (Service Tax of ₹ 24,55,04,845/-, Education of ₹ 49,10,098/- and Secondary Higher Education Cess of ₹ 24,55,047/-) on the amount received by them for the taxable services provided should not be demanded and recovered from them for the period 2010-11 to 2014-15 as per Annexure B under Section 73(1) of the Finance Act, 1994; (iii) the service of Survey and Exploration provided by HOEC as discussed above should not be classified as Survey and Exploration Services under Section 65 (104a) read with Section 65 (105) (zzv) of the Finance Act, 1994 or the taxable service, as the case may be; (iv) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0,098/- and Secondary Higher Education Cess of ₹ 24,55,047/-] for the period from 2010-11 to 2014-15 under Section 73(1) of the Finance Act 1994 read with Section 73(2) of the Finance Act, 1994. (iii) I order that the service of Survey and Exploration provided by the assessee be classified as Survey and Exploration Services under Section 65 (104a) read with Section 65 (105) (zzv) of the Finance Act, 1994 up to 30.06.2012 and as the taxable service from 01.07.2012. (iv) I confirm the demand of ₹ 59,12,22,600/- (Rupees Fifty Nine Crore Twelve Lakh Twenty Two Thousand Six Hundred Only) (Service Tax of ₹ 57,40,02,524/-, Education Cess of ₹ 1,14,80,050/- an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t respondent, before passing the impugned order, failed to consider two Circulars issued on 12.02.2018 and 05.03.2018 in Circular No.32/06/2018 GST and Circular No.35/2018 GST, respectively. 5. According to the petitioner, had the Adjudicating Authority considered those two Circulars which are in favour of the petitioner, he would have not passed the impugned Order in Original by treating the petitioner as a Service Provider and fixing the tax liability on the petitioner. Therefore, it is contended before this Court that the Adjudicating Authority has to consider those two Circulars and decide the matter afresh by giving an opportunity of hearing to the petitioner. 6. The learned Senior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.2018 respectively, relied on by the petitioner, in fact it has dealt with the effect of such Circulars and decided the matter after considering the facts and circumstances of the present case and accordingly, the Adjudicating Authority has come to the conclusion that the petitioner is a Service Provider, liable to pay service tax. Therefore, the learned counsel contended that all the factual contentions raised by the petitioner before this Court, based on the above two Circulars, is a matter which needs to be considered and decided only by the next fact finding authority viz., the Appellate Authority and therefore, the petitioner is not entitled to maintain the present writ petition, when admittedly, as against the impugned order, a statu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the date of the impugned order. At the same time, the effect of those two Circulars and consequences thereof, in the case of the petitioner, is certainly a factual aspect of the matter which needs to be considered and decided only by a next fact finding authority viz., the Appellate Authority, even assuming that the Adjudicating Authority has not considered those two Circulars which according to the petitioner are in their favour. There is no dispute to the fact that as against the present order passed by the first respondent, a statutory appellate remedy is available before the CESTAT and therefore, all the factual contentions raised by the petitioner by relying on those two Circulars can very well be raised before the Appellate Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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