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TMI Blog2022 (4) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... are beyond the statutory period of limitation prescribed under Section 73 of the Finance Act, 1994. That apart, it is submitted that the petitioners are Government Contractors, who have rendered services and that right from Mega Exemption Notification No.25/2012-ST, dated 20.06.2012 and that the petitioners were exempted from payment of tax in terms of Entry 12 to the above said Notification, which reads as under:- ''12.Services provided to the Government, a local authority or a governmental authority by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation, or alteration of- (a) a civil structure of any other original works meant predominantly for use other than for commerce, industry, or any other business or profession; (b) ............ (c) a structure meant predominantly for use as (i) an educational, (ii) a clinical, or (iii) an art or cultural establishment: (d) ........ (e) ........ (f) a residential complex predominantly meant for self-use or the use of their employees or other persons specified in the Explanation 1 to clause 44 of Section 65 B of the said Act;'' 3.The learned coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Ltd. Vs. Commr. of Central Excise, Mumbai and Goa reported in 2006 (1) S.T.R. 73 (SC) (ii) Uniworth Textiles Ltd., Vs. Commissioner of Central Excise, Raipur reported in 2013 (288) ELT 161 (SC) (iii) Deputy Commissioner of Central Excise Vs. Sushil and Company reported in 2016 (42) STR 625 (SC) (iv) Simplex Infrastructures Ltd., Vs. Commissioner of S.T., Kolkota reported in 2016 (42) STR 634 (Cal.) (v) M.Rathakrishnan Vs. ADG., DTE. of Revenue Intelligence, Chennai reported in 2016 (336) ELT 622 (Mad.) (vi) BNP Paribas Global Securities Operations Pvt. Ltd. Vs. Astt. Commr. of S.T., Chennai reported in 2018 (11) G.S.T.L. 28 (Mad.) (vii) Union of India vs. Kothari Petrochemicals Ltd. reported in 2019 (367) E.L.T. 530 (Mad.) (viii) A decision of this Court in the case of Nandhini Constructions, Rep. by a Partner cum Authorised Signatory, Erode vs. The Government of India, Rep. by its Secretary, Ministry of Finance, New Delhi and 14 others [W.A.No.756 of 2018, dated 24.04.2018] (ix) A decision of this Court in the case of V.Gopalakrishnan vs. The Government of India, Rep. by its Secretary, Ministry of Finance, New Delhi and 4 others [W.P.(MD)No.13912 of 2020 etc. bat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ghaziabad vs. Commissioner of Central Excise, Meerut, U.P., reported in 2005 (3) SCC 73. 12.The learned counsel for the petitioners also submits that insofar as the petitioners in W.P.(MD)Nos.4419 of 2021, 4442 of 2021 and 4444 of 2021 are concerned, apart from invoking the extended period under the proviso to Section 73 of the Finance Act, 1994, show cause notices were also issued proposing to levy penalty both under Sections 76 and 78 of the Finance Act, 1994 and therefore, on this count, it cannot be said that there was suppression of fact, as the Department itself confined as to whether there was a case made out for suppression of facts. 13.As far as W.P.(MD)No.22190 of 2021 is concerned, the petitioner has challenged the impugned show cause notice for the period between 01.10.2015 and 31.03.2016 on the ground that the demand is time barred. 14.Opposing the prayer, the learned Senior Panel Counsel for CGST and Central Excise submits that the Writ Petitions are premature and are liable to be dismissed, as the petitioners have challenged the show cause notices. In this connection, the learned Senior Panel Counsel has relied on the following decisions:- (i) Navasakthi Townshi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.The learned Senior Panel Counsel further submits that the petitioners are not without remedy and they are entitled to file a suit for recovering the amount from the service recipient in accordance with the terms of contract, which they have signed. It is submitted that in case the contract stipulates for enhancement of amount towards tax, it is open for the petitioners to apply for the same. 20.The learned Senior Panel Counsel submits that the terms of the contract is of no consequence. In any event, levy of service tax exists as long as the service is provided and therefore, the petitioners are liable to pay tax. Therefore, the learned Senior Panel Counsel prays for dismissal of the Writ Petitions. 21.The learned Senior Panel Counsel also relied on a decision of the Hon'ble Supreme Court in Union of India vs. Unicorn Industries reported in 2019 (368) ELT 202 (SC), wherein the Hon'ble Supreme Court has made a reference to the judgment in the case of Kasinka Trading and another vs. Union of India and another reported in 1995 (1) SCC 274 and held that the doctrine of promissory estoppel is applicable against the Government also particularly where it is necessary to preven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advanced by the learned counsel appearing for the parties. 26.The learned counsel for the petitioners was directed to give a chart regarding the last date for filing Sales Tax-3 returns in respect of show cause notices in the case of respective petitioners. 27.A reading of the chart indicates that only a part of the demand would be statutorily time barred, as it is beyond five years period from the last date for filing of the returns. Bearing the above, the entire demand proposed in the show cause notice cannot be said to be time barred. To that extent, the Writ Petitions filed challenging the impugned proceedings cannot be sustained. It is open for the petitioners to establish the same before the respondents by explaining the provisions of Section 73 of the Finance Act, 1994 read with Rule 7 of the Service Tax Rules, 1994. 28.The other challenge on the ground that the show cause notices are time barred is concerned, it is noticed that the petitioners have neither obtained registration nor filed returns. Therefore, it cannot be said that the petitioners were not guilty of suppression of facts. On this score, I wish to hold that the show cause notices issued by the respondents b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y sub-section (1) of section 93 of the Finance Act, 1994 (32 of 1994), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby makes the following further amendments in the notification of the Government of India, in the Ministry of Finance (Department of Revenue) No. 25/2012-Service Tax, dated the 20th June, 2012, published in the Gazette of India, Extraordinary, Part II, Section 3, Subsection (i) vide number G.S.R.467(E), dated the 20th June, 2012 namely:- 1. In the said notification,- (i) ......... ''2(i) ........... (ii) ............. (ii) in entry 12, items (a), (c) and (f) shall be omitted; 3 Section 102 of the Finance Act (1)Notwithstanding anything contained in section 66B, no service tax shall be levied or collected during the period commencing from the 1st day of April, 2015 and ending with the 29th day of February,2016 (both days inclusive), in respect of taxable services provided to the Government, a local authority or a Governmental authority, by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation or alteration of- (a)a civil structure o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the learned counsel for the petitioners, had an occasion to consider the scope of Notification No.46/94, dated 01.03.1994 and Notification No.95/94-CE, dated 25.04.1994. The Hon'ble Supreme Court took note of the fact that parts of power-driven pumps, which were to be utilized for manufacturing power-driven pumps within the factory, continued to be exempted from the excise duty. The exemption was withdrawn when a consolidated Notification No.46/94 was issued on 01.03.1994 with a view to reduce the number of Notifications. Thus, the exemption that was being granted for power-driven pumps as well as parts of power-driven pumps was withdrawn. On realizing the mistake, the Government issued a subsequent Notification on 25.04.1994 in Notification No.95/94. Noting the above, the Hon'ble Supreme Court held as under:- ''13.The contention of the appellant, in our opinion, therefore, is well founded that both power-driven pumps as well as parts of power-driven pumps used for manufacturing of pumps within the factory were exempted from payment of excise duty. We are also satisfied that notifications were rescinded and a consolidated notification was issued on 1-3-1994 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... item which was operative was either withdrawn or revoked. The action was taken only with a view to rescinding several notifications and by issuing a composite notification. The policy remained as it was and in view of demand being made by the Department, a representation was made by the industries and on being satisfied, the Central Government issued a clarificatory Notification No. 95/94 on 25-4-1994. It was not a new notification granting exemption for the first time in respect of parts of power-driven pumps to be used in the factory for manufacture of pumps but clarified the position and made the position explicit which was implicit. 17.For the foregoing reasons, in our opinion, the appeals deserve to be allowed and are allowed accordingly. Deposit, if any, made by the appellant in pursuance of the order passed by the authorities below will be refunded to it. In the facts and circumstances of the case, however, there shall be no order as to costs.'' 32.However, this is not the case here. Exemption was withdrawn and re-introduced with certain conditions. The exemption is confined to a specific category of contracts entered before 01.03.2015. Therefore, it is open for t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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