JUDGMENT

Abhay S. Oka, J.

The broad question involved in this group of writ petitions is about the liability of Haj Group Organizers (HGOs) or Private Tour Operators (PTOs) to pay service tax on the service rendered by them to Haj pilgrims for the Haj pilgrimage.

FACTUAL ASPECTS

2. The Haj pilgrimage is undertaken by thousands of pilgrims from India, either through the Haj Committee of India (for short, the Haj Committee') or HGOs. There is a bilateral treaty between India and the Kingdom of Saudi Arabia. As per the said bilateral arrangement, the Haj pilgrimage can be undertaken from India only through the Haj Committee or HGOs.

3. The service tax regime was introduced in India in the year 1994 under the provisions of the Finance Act, 1994 (for short the Finance Act'). Initially, very few services were made subject to payment of service tax. However, by subsequent Finance Acts, a large number of services were added to the list from time to time. The total number of services subjected to service tax exceeded 100. A negative list regime was introduced by Act No.23 of 2012 with effect from 1st July 2012. By Act No.23 of 2012, Sections 66-B and 66-C were added. Section 66-B is the charging Section which provided that there shall be a levy of service tax at the rate of 12% on the value of all services other than those specified in the negative list. By amending Section 66-B, the percentage of service tax was enhanced to 14%. Section 66-C confers power on the Central Government to frame rules for determining the place where such services are provided or deemed to have been provided or agreed to be provided or deemed to have been agreed to be provided. Accordingly, the Place of Provision of Services Rules, 2012 (for short, the 2012 Rules') were framed which came into force with effect from 1st July 2012. On 20th June 2012, Mega Exemption Notification no.25 of 2012ST (for short, the Mega Exemption Notification') was issued containing several exemptions. Paragraph 5(b) of the Mega Exemption Notification provided for the exemption on services by a person by way of conduct of any religious ceremony. Paragraph 5A of the Mega Exemption Notification provided for the exemption to services by specified organisations in respect of a religious pilgrimage facilitated by the Ministry of External Affairs of the Government of India, under bilateral arrangement. The Mega Exemption Notification defines specified organisations as Kumaon Mandal Vikas Nigam Limited, a Government of Uttarakhand Undertaking and the Committee or State Committee as defined in Section 2 of the Haj Committee Act, 2002 (for short, the 2002 Act'). With effect from 1st July 2017, under the provisions of the Integrated Goods and Services Tax Act, 2017 (for short, the IGST Act'), the same service tax regime was continued. Identical exemption notification dated 28th June 2017 (for short, the IGST Exemption Notification') was issued by exercising the powers under the IGST Act. Identical Exemption Notification was also issued on the same date (for short, the GST Exemption Notification') under the Central Goods and Services Tax Act, 2017 (for short, the GST Act').

4. Some of the HGOs and PTOs filed petitions in this Court to challenge the levy of service tax on the service regarding the Haj pilgrimage. By the order dated 11th December 2019 passed in Writ Petition (C) No.977 of 2014, this Court directed the petitioners to make a representation to the Government of India for grant of exemption from service tax. Accordingly, a detailed representation was made by some of the petitioners on 19th December 2019. The GST Council by the order dated 14th March 2020, rejected the representation on the basis of the recommendation of the Fitment Committee. The said decision was communicated by the Government of India by a letter dated 5th May 2020.

5. Most of the writ petitions in the current batch of petitions have been filed by various organisations representing HGOs/PTOs. Only one petition, i.e. Writ