The Superintending Engineer Versus The Director General of Central Excise, The Director General of Goods & Service Tax Intelligence, The Commissioner of GST and Central Excise
Service Tax
2018 (5) TMI 788 – MADRAS HIGH COURT – TMI
MADRAS HIGH COURT – HC
Dated:- 24-4-2018
W.P.No.6059 of 2018 & W.M.P.No.7472 of 2018
Service Tax
T. S. Sivagnanam, J.
\nFor the Petitioner : Ms.Narmadha Sampath, Additional Advocate General for Mr.V.Selvasekaran
\nFor the Respondents : Mr.V.Sundareswaran, Mr.S.R.Sundar
\nORDER
\nHeard Ms.Narmadha Sampath, learned Additional Advocate General for Mr.V.Selvasekaran, learned counsel appearing for the petitioner-Chennai Corporation, Mr.V.Sundareswaran, learned Senior Standing Counsel for the respondents 1 and 2 and Mr.S.R.Sundar, learned Standing Counsel, for the 3rd respondent.
\n2. The petitioner is the Superintending Engineer, Bus Route Roads Department, Greater Chennai Corporation and the challenge in this writ petition is to a show caus<\/p>\n
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Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n Further, the petitioner was to indicate in the written reply as to whether they wish to be heard in person before the case is adjudicated. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n ommissioning, installation, completion, fitting out, repair, maintenance for the use of , renovation or alteration for the use of general public is wholly exempted from the payment of service tax and therefore, the 2nd respondent has no jurisdiction to issue the impugned show cause notice. Further, it is reiterated that the transaction has already suffered tax when the excavation is done and if the 2nd respondent is to adjudicate the impugned show cause notice and levy service taxation, it will amount double tax. On the above ground, learned Additional Advocate General sought for quashing the impugned show cause notice. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n ause notice on the ground of jurisdiction. The petitioner has challenged the impugned show cause notice primarily on two grounds. Firstly on the ground that it performs public duty and in the process of doing so, there is excavation work and for the said excavation work the concerned contractor, is remitting tax, which is is inclusive of service tax. Secondly, jurisdictional issue is raised by placing reliance on Mega Exemption Notification dated 20.06.2012. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n not be quashed. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n","protected":false},"excerpt":{"rendered":" The Superintending Engineer Versus The Director General of Central Excise, The Director General of Goods & Service Tax Intelligence, The Commissioner of GST and Central ExciseService Tax2018 (5) TMI 788 – MADRAS HIGH COURT – TMIMADRAS HIGH COURT – HCDated:- 24-4-2018W.P.No.6059 of 2018 & W.M.P.No.7472 of 2018 Service TaxT. S. Sivagnanam, J. For the Petitioner … Continue reading “The Superintending Engineer Versus The Director General of Central Excise, The Director General of Goods & Service Tax Intelligence, The Commissioner of GST and Central Excise”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-11772","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/11772","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=11772"}],"version-history":[{"count":0,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/11772\/revisions"}],"wp:attachment":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=11772"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=11772"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=11772"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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\n4. The learned Senior Standing Counsel appearing for the respondents 1 and 2 raised a preliminary objection regarding maintainability of writ petition as the impugned order in the writ petition is a show cause notice and submitted that the petitioner should be directed to file a reply to the show cause notice and participate in the adjudication process before the 3rd respondent.
\n5. In reply to the said preliminary objection, the learned Additional Advocate General submitted that the nature of services rendered by the Corporation of Chennai is services rendered to the general public and no service tax is payable. It is further submitted that the Telecom Companies, who are permitted to lay Optical Fibre Cables, are paying GST and the said payment is inclusive of all taxes and therefore, no separate payment for service tax is maintainable against th<\/p>\n
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\n6. While reiterating the preliminary objection, the learned Senior Standing Counsel appearing for the respondents 1 and 2 submitted that on and from 01.07.1962, all activities are liable for payment of service tax except the services which are exempted. Referring to the averments\/allegations in the impugned show cause notice, it is submitted that the nature of activity<\/p>\n
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\n9. On a perusal of the impugned show cause notice, it is seen that what is being sought to be taxed is the renting of immovable property and not for excavation work. Therefore, if any remittance being made by the Contractor who has excavated the earth for the purpose of renting of immovable property, will not absolve the petitioner from the proposal made in the show cause notice. The second aspect is whether Mega Exemption Notification would be applicable to a particular nature of service is purely a question of fact. Therefore, i<\/p>\n
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\n10. For the above reasons, the writ petition is dismissed as not maintainable. However, it is made clear that the observation made in this order are only prima facie observations made while testing the legal question as to whether the writ petition is maintainable or not and these observations will have absolutely no impact in the adjudication process and the Adjudicating Authority shall decide the matter independently applying his mind and without being in any manner influenced by the observations made in this order. Considering the fact that the writ petition is pending since 14.3.2018 and time limit prescribed in the show cause notice for submitting reply has expired, this court directs the petitioner to submit their reply to the show cause notice within a period of thirty days from the date of receipt of a copy of this order. The reply to be filed by the petitioner shall be in addition to the reply already filed by the petitioner dated 13.03.2018 and the adjudicati<\/p>\n
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