Back
2018 Supreme(Gau) 1464
IN THE HIGH COURT OF GAUHATI
ACHINTYA MALLA BUJOR BARUA, J.
Apeejay Tea Ltd. and Ors - Appellant
Versus
The Union of India and Ors - Respondent
WP (C) 7863, 7888, 7896 of 2017
Decided On : 12-10-2018
Advocate Appeared:
For the Appellant : A. Mazumdar
For the Respondent: Asstt. S.G.I.
Headnote:
Finance Act of 1994 - Section 68(2), 73(1),78,72, - UP Sales Tax Act, 1948 - Section 2 and 2(i) - Societies Registration Act, 1860 - writ petition - Exemption from service tax - A common question of law is involved to be determined on same set of facts except that demand and petitioners are engaged in business of plantation manufacture sale and transportation of tea under petitioner company which has various tea gardens in India and in course of their business petitioners engage various goods transport agencies for transportation of tea from its tea gardens in Assam to its warehouses and question involved is as to whether petitioners are liable to pay service tax under Chapter-V of Finance Act for availing service of transportation of tea and To that effect demand cum show-cause notices of different dates were issued by Assistant Commissioner of Excise Customs and Good & Services Tax to different tea estates operated by petitioner – Held, In where a conclusion is already arrived that Entry of Notification did not include tea and said Entry having been retained as it was even after Notification was issued it cannot be stated that tea now stands included within meaning of expression agricultural produce as appeared in Entry and as a conclusion had already been arrived that Entry of Notification does not include tea even after amendment brought in by Notification other contention - Petitioners that where two views are possible view in favor of assessed is to be accepted is inapplicable in present case and in view of aforesaid conclusion contention of petitioner that tea was included within meaning of expression agricultural produce as appearing under Entry and it continues to remain included even after amendment incorporated by - Notification contention of writ petitioners that they are entitled for an exemption from service tax in respect of its transportation by a goods carriage agency in a goods carrier is found to be unacceptable and Although claim of petitioners for interfering with demand-cum-show cause notices had been refused but it clarified that respondents if desire may proceed ahead with said demand-cum-show cause notices and same be done strictly in accordance with law but from point of view that demand-cum-show cause notices came into effect from date of this judgment no order as to costs - Writ petitions dismissed
ACHINTYA MALLA BUJOR BARUA, J.
1. Heard Mr. A. Mazumder, learned senior counsel for the petitioners. Also heard Mr. B. Sarma, learned counsel for the respondent authorities. In all the three writ petitions a common question of law is involved to be determined on the same set of facts, except that the demand notices under section 73 of the Finance Act of 1994 are in respect of different tea estates of the petitioner company and accordingly, the three writ petitions are taken up for a final consideration, resulting in the common judgment and order.
2. The petitioners are engaged in the business of plantation, manufacture, sale and transportation of tea under the petitioner No. 1 company, which has various tea gardens in India. In course of their business, the petitioners engage various goods transport agencies for transportation of the tea from its tea gardens in Assam to its warehouses. The question involved is as to whether the petitioners are liable to pay service tax under Chapter-V of the Finance Act of 1994 for availing the service of transportation of the tea. To that effect, demand cum show-cause notices of different dates were issued by the Assistant Commissioner of Excise Customs and Good & Services Tax, Guwahati to the different tea estates operated by the petitioner No. 1.
3. In respect of Budlapara tea estate, a demand cum show cause notice dated 07.09.2017 was issued for the period from April 2013 to March 2016 by arriving at a conclusion that service tax including cess for an amount of Rs. 3,52,556/- was evaded. Consequent thereto, the Budlapara tea estate was called upon to show cause notice within thirty days as to why service tax including cess amounting to Rs. 3,52,556/- should not be recovered under Section 73(1) of the Finance Act of 1994 and further as to why appropriate interest should not be charged and recovered under Section 75 and further as to why penalty should not be imposed under Section 78 of the said Act of 1994.
4. Similar demand cum show cause notices were also issued to the other tea estates of the petitioner No. 1. In respect of Talup Tea Estate a demand cum show cause notice dated 14.09.2017 was issued for an amount of Rs. 4,50,005/- and in respect of Pengree Tea Estate it was issued for an amount of Rs. 1,42,796/-. The demand cum show cause notice in respect of Budlapara tea estate has been assailed in WP(C) No. 7863/2017, in respect of Taluk tea estate, it has been assailed in WP(C) No. 7888/2017 and in respect of Pengree tea estate, it has been assailed in WP(C) No. 7896/2017.
5. Mr. A. Mazumder, learned senior counsel for the petitioners assails the aforesaid three demand cum show cause notices by raising a contention that under the relevant notifications in force, there is an exemption on the imposition of service tax including cess in respect of transportation of tea. Hence according to Mr. A. Mazumder, learned senior, counsel all the three demand cum show cause notices are therefore, without any authority of law and as such liable to be interfered.
6. In order to substantiate his contention, Mr. Mazumder, learned senior counsel refers to the Notification No. 30/2012-ST dated 20.06.2012 of the Govt. of India in the Ministry of Finance, Department of Revenue. The said notification issued in exercise of the powers under Section 68(2) of the Finance Act of 1994 notifies certain taxable services as stated therein and also the extent to which service tax is payable thereto by the persons liable to pay service tax for the purpose. The taxable services referred in the notification of 20.06.2012 also included the services provided or agreed to be provided by a goods transport agency in respect of transportation of goods by road, where the person who would be liable to pay the freight for such transportation is, amongst others, a factory registered under Factories Act of 1948, a society registered under the Societies Registration Act, 1860, a cooperative society established by or under any
