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2022-TIOL-1614-HC-MAD-ST
Raju Construction Vs Govt. of India
ST - The petitioners who are contractors were engaged by the Public Works Department of State & Central Government for construction of school buildings and etc. - The services provided by the respective petitioners according to them were exempted from payment of service tax in terms of Entry 12(a), (c) & (f) in Mega Exemption Notification No. 25/2012-Service Tax, dated 20.06.2012 - The above entries were omitted by the impugned Notification No. 6/2015-Service Tax, dated 01.03.2015 andin view thereof the service provided by the respective petitioners became liable to tax - By subsequent Notification No. 9/2016-Service Tax, dated 01.03.2016, Entry 12A was inserted after Entry 12 to Notification No. 25/2012-Service Tax, dated 20.06.2012, with effect from 1st March, 2016 – Accordingly, the exemption which was withdrawn / omitted by the impugned Notification No. 6/2015-Service Tax, dated 01.03.2015, was re-introduced only for contracts entered into prior to 1st March, 2015 with a caveat that the exemption was confined to the services provided to the Government, Local Authorities or Governmental Authorities by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation, or alteration of certain buildings as specified in the above Clauses (a), (b) and (c) to Entry 12A, on which appropriate stamp duty, where applicable, had been paid prior to such date - Petitioners inter alia challenge the Notification No. 6/2015-ST dated 01.03.2015, Show Cause Notices / Notices, Orders-in-Original, Letter / Communications contending that withdrawal of exemption should also be in the public interest and there is no public interest involved in withdrawing the above exemption when the impugned Notification No. 6/2015-Service Tax, dated 01.03.2015 was issued- Writ Petitions deal with "service tax liability" of contractors who were specifically engaged by the Public Works Departments of both State & Central Government.
Held: Whether public interest existed or not in withdrawing the exemption is not justiciable unless it is found that such withdrawal was vitiated on account of malafide, extraneous consideration or arbitration - High Court while exercising its jurisdiction under Article 226 of the Constitution of India does not sit in appeal over the decision of the Government to withdraw a Notification or an exemption - It is further a policy decision of the Government to withdraw the exemption -The arguments advanced that some of the petitioners were illiterate and/or semi-literate and were unaware of amendment cannot be countenanced as law presumes every citizen to know the law - It is for every citizen to arrange his or her or his/her affairs in consonance with the law - Further, prior to 01.07.2012, itself w.e.f. 10.09.2004, these petitioners were exposed to service tax and w.e.f. 01.06.2007, for service, the service tax liability was confirmed on service provided in relation to works contract -Therefore, these petitioners cannot claim any concession based on the alleged ignorance - Cursory glance of some of the Show Cause Notices issued to the petitioners which have been challenged in the Writ Petitions in Table Nos.2 & 4 indicates that they are assessees not only under the provisions of the Income Tax Act, 1961 but also under the Tamil Nadu Value Added Tax Act, 2006 and Puducherry Value Added Tax Act, 2007 - Apart from the above, some of these petitioners failed to register and pay service tax for the services rendered by them to the Government Authorities -Withdrawal of exemption in public interest is a matter of policy - Courts cannot find fault with the policy decisions of the Government for all times to come, irrespective of the satisfaction of the Government that a change in the policy was necessary in public interest and, therefore, the challenge to the Notification or the show cause notices, seeking to demand tax cannot be countenanced - Exemption was withdrawn and re-introduced with certain conditions on to those contracts signed before the cut-off date - The exemption is confined to a specific category of contracts entered before 01.03.2015,therefore, it cannot be said that the impugned Notification is arbitrary -The petitioners have to pay the respective service tax and recover the same from their clients namely, the Government Departments - As mentioned elsewhere in this order, the principles contained in Sale of Goods Act, 1930, will apply and it is open for the respective petitioners to press for such relief by applying the above principles to their cases -Therefore, it cannot be said that the petitioners are remediless - They can certainly file a suit to recover the amount from the person who engaged their services by invoking principles in Section 64A of the Sale of Goods Act, 1930 -Challenge to the impugned Notification No. 6/2015-Service Tax, dated 01.03.2015 fails - Consequently, the challenge to the impugned Show Cause Notices / Summons / Demand Notice, Orders-in-Original, Letters / Communication and etc. also fails - All these Writ Petitions are dismissed: High Court [para 108, 109, 110, 111, 114, 118, 120, 121, 127]
- Petitions dismissed: MADRAS HIGH COURT
2022-TIOL-1613-HC-MUM-CUS
Dinesh Bhabootmal Salecha Vs DRI
Cus - Applicant, who is presently in judicial custody seeks bail under Section 439 of the Code of Criminal Procedure, 1973 - It is the case of the first respondent that the syndicate in which the Applicant has played a major role, imported several consignments of iPhones giving misdeclaration and thereby leading to evasion of customs duty - It is alleged that the Applicant systematically misused his AEO status, breached the trust placed on him by the Government and smuggled mobile phones in large numbers into India - It is submitted that a team of four DRI Officers came to the residence of Applicant at about 6.45 a.m. on 2nd December 2022 with the intent to arrest him without any order or permission from the Settlement Commission; that the arresting officer had no legal authority and jurisdiction to arrest the Applicant and that his arrest was in violation of Article 21 of the Constitution of India - Respondent contends that exclusive jurisdiction of the Settlement Commission is restricted to two seized consignments and for past 130 consignments.
Held: It is a matter of record that the immunity from prosecution sought by the Applicant is in respect of allegations levelled in the show cause notice dated 25th May 2022, which also include allegations of misdeclaration in 130 past consignments - It cannot be, therefore, said that prima facie arrest is about any matter other than those before the Settlement Commission - It is admitted fact that the Settlement application was filed after the issuance of the show cause notice - Counsel for the first respondent could not give any justifiable response to the query as to why the Applicant was not produced on 2nd December 2022, when admittedly, his statement was concluded at 2.14 p.m -Court prima facie finds merit in the contention of the Applicant that there was an intent to arrest the Applicant since inception on 2nd December 2022 and,therefore, a team of four officers had not only gone to the Applicant's residence but also brought him to the DRI office with them–Arrest memo does not contain any particulars of the case in which the Applicant was arrested,it does not contain any file number - No particulars of the offence, save and except stating the penal sections are forthcoming from the Arrest Memo - The Arrest Memo should contain the gist of the offence alleged to have been committed - The Arrest Memo prima facie appears to be bereft of necessary particulars – Contention of respondent that applicant was absconding for quite some time; that he has been non-cooperative in the investigationcannot justify non-compliance with the Constitutional imperatives and statutory obligations - Court is inclined to grant bail to the applicant on compliance with the conditions laid down: High Court [para 15 to 17]
- Application allowed: BOMBAY HIGH COURT |
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