TMI Blog2019 (9) TMI 1343X X X X Extracts X X X X X X X X Extracts X X X X ..... ttedly, the petitioner has suo motu, complied with the provisions of Rule 2(i)(d)(iv) and having done so, the petitioner should not be expected to suffer on account of compliance - this writ petition should succeed and the amount of tax remitted be refunded to the petitioner within a period of four weeks from date of receipt of a copy of this order. The collection of tax in terms of Rule 2(i)(d)(iv) prior to insertion of Section 66(A) is sans the authority of law. The petitioner is, without question, entitled to the refund sought for by it in this regard - the levy of interest would be justified for the period post the judgment of the Supreme Court dated 14.12.2009, confirming the position that the charge under Rule 2(i)(d)(iv) prior to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 65(105) and 66 of Finance Act, 1994 authorized the levy of service tax only upon the service provider and not upon the service recipient as was sought to be done by Rule 2(1)(d)(iv). The challenge before the Court was set out in paragraph-1 of the decision of the Division Bench in Indian National Ship Owners Association vs. Union of India, (2009 (13) STR 235 (Bom)), as follows: 'By this Petition the Petitioners challenge the constitutional validity of the following:- (i) Section 66A of the Finance Act, 1994l; (hereinafter referred to as the Act for the sake of brevity), which has been introduced with effect from 18th April, 2006; (ii) An explanation to Section 65(105) of the Act, which was in force between 16th June, 2005 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TAT'), by order dated 18.10.2013 reversed the order of the Commissioner (Appeals) making a distinction between a levy that is 'without the authority of law' and one that was 'unconstitutional'. 6.A Civil Miscellaneous Appeal in CMA.No.1403 of 2015 was filed by the petitioner before a Division Bench of this Court that by order dated 25.04.2017, dismissed the same. While observing that the findings of the Tribunal to the effect that the levy was only without the authority of law but not unconstitutional was erroneous, the bench states at paragraphs 9 to 15 as follows: '9.While we are in agreement with the learned counsel for the Appellant/Assessee that the observation of the Tribunal, that the levy should be cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he judgment of the Gujarat High Court in the matter of : Binani Cement Vs. Union of India reported in 2013 (288) ELT 193 (Guj.) - that judgment, in our opinion, would have no application to the instant case, as in that matter, the Gujarat High Court was dealing with a writ petition. Clearly, the Tribunal, in the instant case, was exercising powers, as a creature of the statute and therefore, could not have granted any relief to the Appellant/Assessee, having regard to the nature of its jurisdiction. Therefore, Question No.(iii), will also have to be answered against the Asessee and in favour of the Revenue. 14.Therefore, while we are of the opinion that no relief can be granted to the Appellant/ Assessee, in view of the jurisdiction that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be attributed to the petitioner is one of adherence to the rule of law. As the Division Bench has states at paragraph-2, 'We may note that this is a harsh case, where the appellant ended up paying service tax, even though, it was a recipient of the service and that too, prior to the amendment, brought in, with effect from 18.04.2006. By way of amendment, Section 66 A was inserted in the Finance Act, 1994. By virtue of this provision, service tax could be collected from the recipient of service, by way of a deeming fiction, where service provider was located outside the Country'. 11. In the light of the discussion as above, I am of the considered and categoric view that in the light of the order of the Division Benches, this ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
