TMI Blog2020 (10) TMI 1107X X X X Extracts X X X X X X X X Extracts X X X X ..... tory provisions correctly appreciated and applied to the attending facts and circumstances. There is no violation of principles of natural justice. There is no misconstruction or misappreciation of fact or misapplication of the law - Petitioner has been providing service to the Government authority. The service does not fall within the specified services contained in the negative list. The amount received from the Railway Authorities is not in dispute, and the incidence of taxation stands correctly determined. The defence taken by the petitioner of persuading the service recipient to pay the amount or having initiated proceedings seeking appointment of an Arbitrator for settlement of disputes rightly stands rejected by the Assessing Authority, for compliance of the statutory provisions are not subject to or dependent upon the contractual terms governing the parties - Arbitral proceedings would only determine obligations inter se the parties to the agreement and not the liability or factum of compliance of statutory provisions. The statute mandates timely payment of component of tax. There is no provision for deferment, either till the time of its receipt or payment only subje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigation carried out by the Anti-Evasion Branch of Central Excise Service Tax, Headquarters, Patna revealed that (a) the petitioner was not registered under the Act; (b) not paid any amount of tax; (c) had received from the railways an amount of ₹ 54,17,254/- in the financial year 2011-12 and ₹ 1195,26,312/- in the financial year 2012-13; (d) such payment was towards the services classified as dry cleaning/washing of the bedrolls provided to the passengers in the AC Coaches in different trains. A notice to show cause was issued to the petitioner calling upon them to explain as to why an order for recovery of service Tax amounting to ₹ 1,47,84,882/-, Education Cess amounting to ₹ 2,95,698/-; and Secondary Higher Education Cess amounting to ₹ 1,47,849/, amounting to a total of ₹ 1,52,28,429/-for the financial years 2011-12 and 2012-13, be not passed. After complying with all procedural formalities and adhering to the principles of natural justice, the Assessing Authority passed the impugned order dated 2nd April, 2018, operative portion of which reads as under:- 12. In view of above discussions, I pass the following order:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... include- (a) an activity which constitutes merely,- (i) a transfer of title in goods or immovable property, by way of sale, gift or in any other manner; or (ia) such transfer, delivery or supply of any goods which is deemed to be a sale within the meaning of clause (29A) of article 366 of the Constitution; or (ii) a transaction in money or actionable claim; Explanation 2 . - For the purposes of this clause, the expression transaction in money or actionable claim shall not include - (i) any activity relating to use of money or its conversion by cash or by any other mode, from one form, currency or denomination, to another form, currency or denomination for which a separate consideration is charged; (ii) any activity carried out, for a consideration, in relation to, or for facilitation of, a transaction in money or actionable claim, including the activity carried out - (a) by a lottery distributor or selling agent on behalf of the State Government, in relation to promotion, marketing, organising, selling of lottery or facilitating in organising lottery of any kind, in any other manner, in accordance with the provisions of the Lotteries (Regulation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in section [66B] and all the provisions of this Chapter shall apply to such person as if he is the person liable for paying the service tax in relation to such service.] Provided that the Central Government may notify the service and the extent of service tax which shall be payable by such person and the provisions of this Chapter shall apply to such person to the extent so specified and the remaining part of the service tax shall be paid by the service provider.] 69. Registration . (1)Every person liable to pay the service tax under this Chapter or the rules made thereunder shall, within such time and in such manner and in such form as may be prescribed, make an application for registration to the Superintendent of Central Excise. (2) The Central Government may, by notification in the Official Gazette, specify such other person or class of persons, who shall make an application for registration within such time and in such manner and in such form as may be prescribed. By virtue of and under the provisions of Section 71A, returns are mandatorily required to be filed by the service provider. Failure to do so entails consequences, for the Authorized Officer, beco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it may be possible that the same is passed on to the customer but as far as the levy and assessment are concerned it is the person rendering the service who alone can be regarded as an assessee and not the customer. This is the only way in which the provisions can be read harmoniously. Similar views stand reiterated by Hon ble the Apex Court in T. N. Kalyana Mandapam Assn. Vs. Union of India others, (2004) 5 SCC 632. The Principal Act had to be amended by virtue of the interdiction by Hon ble the Apex Court, and constitutional validity of which was also examined by Hon ble the Apex Court in Gujarat Ambuja Cements Ltd. and another Vs. Union of India and another, (2005) 4 SCC 214, wherein also, the Court, after elaborately discussing the provisions not only upheld the amendment but clarified that liability to pay the tax in respect of services rendered is upon the service provider. The Apex Court in Commissioner of Central Excise, Vadodara-I Vs. Gujarat Carbon and Industries Limited, (2008) 9 SCC 518 has culled out the distinction between the availer/receiver and a service provider. Further holding that obligation for complying with the statutory provisions rests wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority. The service does not fall within the specified services contained in the negative list. The amount received from the Railway Authorities is not in dispute, and the incidence of taxation stands correctly determined. One finds that with impunity petitioner continued to evade the liability, which fact was discovered by the agencies only after gathering information through the source of intelligence. In determining the incidence of tax liability, the Assessing Officer rightly excluded the amount pertaining to the service of dry cleaning of blankets. Sl.No. Amount of contract receipt period component of dry cleaning 1. 2,66,23,221.87 year 2011-12 3,00,683/- 2. 8,50,857.19/- 01.04.2012 to 30.06.2012 48225/- 3. 2,97,41,044.23/- 01.07.2012 to 31.03.2013 Thus, the total amount received by the petitioner for the period in question amounts to ₹ 57,215,123.29/-. The defence taken by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
