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Rajasthan High Court · body

2005 DIGILAW 1616 (RAJ)

Century P. P. Industries v. Union of India

2005-06-01

K.S.RATHORE

body2005
Judgment K.S. Rathore, J.-The present writ petition is directed against the order dated 29.07.2004 by which the Superintendent, Service Tax has directed the petitioner to pay service tax and file returns. 2. An agreement between the petitioner and the respondents was executed for maintenance and repair on the terms and conditions indicated in the agreement. The contention of the petitioner is that as per Sub-section 64 of Section 65, maintenance or repair means any person under a maintenance contract or agreement or a manufacturer or any person authorised by him in relation to maintenance or repair or servicing of any goods or equipment, excluding motor vehicle. 3. Learned Counsel for the petitioner submits that the petitioner company undertake repairs of electrical transformers manufactured by third parties and supplied by them to Electricity Board/Nigam/companies. Such Electricity Board/ Nigam/Companies send their used/worn out transformers for repairs. The petitioners are not the authorised service centers of such third party manufacturers from whom Electricity Board/Nigam/ Companies might have purchased. The entry does not make the petitioner liable to service tax and they are also not having the maintenance contract. 4. Learned Counsel also referred Section 67(vi) which is reproduced hereunder:-Section 67: For the purposes of this Chapter, the value of any taxable service shall be the gross amount charged by the service provider for such service rendered by him. But does not include- (vi) the cost of parts or other material, if any, sold to the customer during the course of providing maintenance or repair service; 5. Learned Counsel for the petitioner submits that for the purpose of charing service tax on maintenance or repair services certain conditions needs to be satisfied and the service tax can only be charged from the petitioner, if the petitioner under a maintenance contract and manufactures such goods and doing such work under authorisation from such manufacture like authorised service centers of companies. The service provided must have the character of maintenance or repair or servicing and activity must be in relation to goods or equipments, but should not be in relation to motor vehicles. 6. Learned Counsel also referred Section 73 of the Act which deals with the value of taxable services escaping assessment. The service provided must have the character of maintenance or repair or servicing and activity must be in relation to goods or equipments, but should not be in relation to motor vehicles. 6. Learned Counsel also referred Section 73 of the Act which deals with the value of taxable services escaping assessment. As per Sub-clause (a), the Assistant Commissioner of Central Excise or, as the case may be, the Deputy Commissioner of Central Excise has reason to believe that by reason of omission of failure on the part of the assessee, to make a return under Section 70 for any prescribed period or to disclose wholly or truly all material facts required for verification of the assessment under Section 71, the value of taxable service has escaped assessment or has been under-assessed or service tax has not been paid or has been short paid or any sum has erroneously been refunded. 7. Since, against the order passed by the Superintendent, Service Tax, no remedy is available, therefore, this writ petition has been preferred. 8. Per contra, learned Counsel for the respondents also relied upon Section 65 Sub-section 64 and submits that the petitioner has wrongly interpreted Sub-section 64. As per said section, maintenance or repair means any service provided by any person under a maintenance contract or agreement or a manufacture or any person authorised by him, in relation to maintenance or repair or servicing of any goods or equipment. Thus, the repair undertaken by the petitioner company under the agreement is no doubt fall within a ambit of Sub-section 64. 9. Learned Counsel for the respondent Mr. K.K. Sharma further submits that it is admitted case that the petitioner company is registered company as per the provisions of Section 69 and every person is liable to pay service tax under this chapter or the rules made thereunder shall, within such time and in such manner and on such form as may be prescribed, make an application for registration to the Superintendent of Central Excise. As per Section 70, every person liable to pay the service tax shall himself assess the tax due on the services provided by him and shall furnish to the Superintendent of Central Excise, a return in such form and in such manner and at such frequency as may be prescribed. 10. Learned Counsel for the respondents further referred Section 71, which is reproduced hereunder:-Section 71. 10. Learned Counsel for the respondents further referred Section 71, which is reproduced hereunder:-Section 71. (1) The Superintendent of Central Excise may, on the basis of information contained in the return filed by the assessee under Section 70, verify the correctness of the tax assessed by the assessee on the services provided. .(2) The Superintendent of Central Excise may require the assessee to produce any accounts, documents or other evidence as he may deem necessary for such verification as and when required. .(3) If on verification under Sub-section (2), the Superintendent of Central Excise is of the opinion that service tax on any service provided has escaped assessment or has been under assessed, he may refer the matter to the Assistant Commissioner of Central Excise or, as the case may be, the Deputy Commissioner of Central Excise, who may pass such order of assessment as he thinks fit. 11. Here in the instant case, the Superintendent, Service Tax is competent to verify the correctness of the tax assessed and rightly observed in the impugned order that the petitioner has registered himself . Since 1st July, 2003, neither the service tax as applicable to the petitioner was not deposited nor six monthly ST 3 return was filed by the petitioner, therefore, the petitioner was called upon and liberty was given to represent his case pursuant to the notice dated 29.07.2004. It is admitted that the petitioner has not answered the notice and directly rushed to this Court. After submission of the reply pursuant to the notice dated 29.07.2004, in case the Superintendent, Central Excise is of the opinion that service tax of any service provided or has been under assessed, he may refer the case to the Assistant Commission or Deputy Commissioner as the case may be. On such eventuality, the petitioner has got remedy of appeal to the Commissioner of Central Excise under Section 85(1). According to which, any person aggrieved by any assessment order passed by the Assistant Commissioner of Central Excise or, as the case may be, Deputy Commissioner of Central Excise under Section 71, Section 72 or Section 73, or denying his liability to be assessed under this Chapter, or by an order levying interest or penalty or denying any refund of service tax under this Chapter, may appeal to the Commissioner of Central Excise (Appeals). 12. 12. In view of the above, I do not find any error or illegality in the order impugned. Even otherwise, without availing the alternative efficacious remedy, the petitioner has filed the present writ petition which is not maintainable. In the considered opinion of this Court, it is not such a case where any interference is required while exercising power under Article 226 of the Constitution. Consequently, the writ petition fails and herewith dismissed.