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TMI Blog2022 (5) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... lecting applicable service tax from the customers, they also collected bank charges, Chennai Container Terminal P Ltd (CCTL) charges and container freight station charges by raising invoices mentioning such charges as "Non Taxable Service". While so, the Commissioner of Service Tax, Chennai issued show cause notices along with statement of demand proposing to levy service tax on the value of "non taxable services" by invoking Rule 5(1) of Service Tax (Determination of Value) Rules for the different periods. The appellant therefore filed WP. Nos. 14747 to 14749 of 2016 challenging the validity of Rule 5 of the said Rules, order-in-original dated 21.01.2016 along with statement of demand dated 04.06.2015. On 22.04.2016, this Court following the earlier order dated 04.04.2016 in WP.Nos.10765 and 10766 of 2016, admitted the said writ petitions and granted an order of interim stay. 3. The appellant further stated that in an identical case, in Intercontinental Consultants reported in 2013 (29) STR 9 the Delhi High Court passed an order to the effect that Rule 5 of Service Tax (Determination of Value) Rules was held to be ultra vires and void. Aggrieved by the said order passed by the De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lue) Rules, 2006, without reference to the order passed by the Honourable Apex Court, confirming the order of the Delhi High Court holding that Rule 5 of the said Rules was held to be ultra vires and unconstitutional. When the action so taken by the department was put to challenge, by filing writ petitions, the learned Judge, without appreciating the said aspect, directed the appellant to file statutory appeals before the appellate authority. 8. On the other hand, it is the submission of the learned Senior Standing Counsel appearing for the respondents that the respondent authorities levied service tax against the appellant in accordance with the relevant provisions of law and hence, the same need not be interfered with by this court. 9. Be it noted that the issue involved herein is squarely covered by the decision of the Honourable Supreme Court in Union of India v. Intercontinental Consultants and Technocrafts Private Limited reported in 2018 (10) G.S.T. L. 401 (SC), in which, the order of the Delhi High Court declaring Rule 5 of Service Tax (Determination of Value) Rules as ultra vires and unconstitutional, was affirmed. For better appreciation, the relevant paragraphs of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lue of taxable service shall be the gross amount charged by the service provider 'for such service' and the valuation of tax service cannot be anything more or less than the consideration paid as quid pro qua for rendering such a service. 25) This position did not change even in the amended Section 67 which was inserted on May 01, 2006. Sub-section (4) of Section 67 empowers the rule making authority to lay down the manner in which value of taxable service is to be determined. However, Section 67(4) is expressly made subject to the provisions of sub-section (1). Mandate of sub-section (1) of Section 67 is manifest, as noted above, viz., the service tax is to be paid only on the services actually provided by the service provider. 26) It is trite that rules cannot go beyond the statute. In Babaji Kondaji Garad, this rule was enunciated in the following manner: "Now if there is any conflict between a statute and the subordinate legislation, it does not require elaborate reasoning to firmly state that the statute prevails over subordinate legislation and the bye-law, if not in conformity with the statute in order to give effect to the statutory provision the Rule or byelaw has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r technique is known as legislative drafting and latter one is to be found in the various principles of "interpretation of statutes". Vis-à-vis ordinary prose, a legislation differs in its provenance, layout and features as also in the implication as to its meaning that arise by presumptions as to the intent of the maker thereof. 28. Of the various rules guiding how a legislation has to be interpreted, one established rule is that unless a contrary intention appears, a legislation is presumed not to be intended to have a retrospective operation. The idea behind the rule is that a current law should govern current activities. Law passed today cannot apply to the events of the past. If we do something today, we do it keeping in view the law of today and in force and not tomorrow's backward adjustment of it. Our belief in the nature of the law is founded on the bedrock that every human being is entitled to arrange his affairs by relying on the existing law and should not find that his plans have been retrospectively upset. This principle of law is known as lex prospicit non respicit: law looks forward not backward. As was observed in Phillips v. Eyre [(1870) LR 6 QB 1] , ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax, it is for the appellant to submit their explanations to the same within a period of two weeks from the date of receipt of a copy of this judgment. On such submission, the authority concerned shall consider the same and pass orders on merits and in accordance with law and also in the light of the decision of the Hon'ble Supreme Court, after providing an opportunity of being heard to the appellant, within a period of four weeks thereafter. 11.With respect to WA.No.2808 of 2021, arising from the order made in WP.No.11268 of 2020, in which, the appellant questioned the order-in-original No.4/2020 dated 06.02.2020 levying service tax for the period from October 2006 to 2007-08, we set aside the same and remand the matter to the authority concerned for passing orders afresh. It is open to the appellant to submit all the material documents if any to the authority concerned within a period of two weeks from the date of receipt of a copy of this judgment. On such submission, the authority concerned shall consider the same and pass orders on merits and in accordance with law and also in the light of the decision of the Hon'ble Supreme Court, after providing an opportuni ..... X X X X Extracts X X X X X X X X Extracts X X X X
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