Back
2023 Supreme(Mad) 216
IN THE HIGH COURT OF JUDICATURE AT MADRAS
ANITA SUMANTH, J.
M/s.Amirta International Institute of Hotel Management, (Now known as Chennais Amirta International Institute of Hotel Management – Appellant
Versus
The Principal Commissioner of CGST & Central Excise – Respondent
W.P.Nos.12291 of 2019, 3354, 5098 of 2020, 29286 of 2022 and WMP.Nos.12579, 16137 and 19172 of 2019, 3893, 6016 of 2020 and 28581 of 2022
Decided on : 02-02-2023
Advocate Appeared:
For the Appellant : Ms.Radhika Chandrasekhar
For the Respondents: Mr.R.Sankara Narayanan, For Mrs.Hema Muralikrishnan, Mr.Rajnish Pathiyil, Mr.V.Sundareswaran, Adv
Headnote:
Constitution of India,1950 – Article, 226 – Central Goods and Services Tax Act, 2017 – Section 174(2), (3) – Finance Act, 1994 – Section 65B(44), 66E(c) – Service Tax Rules, 1994 – Rule 3 – Central Excise Rules, 2002 – Rule, 3 – Copyright Act, 1957 – Apprentice Act, 1961 – General Clauses Act, 1897 – Companies Act, 1913 – Tamil Nadu Value Added Tax Act, 2006 – Section 88(3)(1) – Power of High Courts to issue certain writs – A common order is passed in these Writ Petitions, since legal issue upon which a determination is sought are one and same in all matters – facts in W.P. are similar as they relate to liability to Service tax under Finance Act for transfer of copyright in musical work by music composers and exemption they seek in terms of Exemption Notification – Held, Court also take a cue from proviso to Section that is extracted at paragraph supra – Section states that repeal as per subsection shall not affect any rights, privileges or obligations or liability acquired, accrued or incurred under old Act and proviso carves out an exception in regard to tax exemption granted as an investment against investment through 'Notification' – In such cases, such exemptions shall continue until rescinded – What court gather by implication, is that Notifications in other situations continue – Petitions dismissed.
ORDER :
Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to Writ of Certiorari, to call for the records of the First Respondent in the impugned Order-In-Original No.27/2019 dated 17.10.2019, quash the same as the same is beyond the scope of Section 174(2) of the CGST Act, 2017; without jurisdiction as it has been passed by the First Respondent when the Notice has been issued by the Second Respondent; as it seeks to levy service tax on permanent transfer of copyright in musical works in violation of Section 65B(44) of the Finance Act, 1994 and denies exemptions conferred through Notification No.25/2012 dated 20.06.2012 and denies the rights conferred on the petitioner under the provisions of the Copyright Act, 1957.
Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to Writ of Certiorari, to call for the records in the proceedings in Show Cause Notice No.11/2019 dated 09.04.2019, in F.No.INV/DGGSTI/CZU/ST/21/2018, issued by the Respondent and quash the same as arbitrary and illegal.
Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to Writ of Certiorari, to call for the records of the First Respondent in the impugned Order-In-Original No.43/2022(JC) dated 30.08.2022, quash the same as the same is beyond the scope of Section 174(2) of the CGST Act, 2017; without jurisdiction as it has been passed by the First Respondent when the Notice has been issued by the Second Respondent; as it seeks to levy service tax on permanent transfer of copyright in musical works in violation of Section 65B(44) of the Finance Act, 1994 and denies exemptions conferred through Notification No.25/2012 and denies the rights conferred on the petitioner under the provisions of the Copyright Act, 1957.
A common order is passed in these Writ Petitions, since the legal issue upon which a determination is sought are one and the same in all the matters. The facts in W.P.Nos.3354, 5098 of 2020 and 29286 of 2022 are similar as they relate to liability to Service tax under the Finance Act 1994 (‘in short Act’) for transfer of copyright in musical work by music composers and the exemption they seek in terms of Exemption Notification 25/2012 dated 20.06.2012. The facts in W.P.No.12291 of 2019 vary substantially and are detailed in the paragraphs to follow.
2. The petitioner in W.P.No.12291 of 2019 is engaged in conducting professional and Executive Diploma courses in Hotel Management. It was in receipt of a show cause notice dated 30.08.2018 issued by the Director General of GST Intelligence (DGGI/R2) proposing to levy service tax for the period 01.01.2013 to 30.06.2017 upon the premise that the activity carried on by it amounts to service as defined under Section 65B(44) of Finance Act, 1994 (in short Act), as amended in 2012.
3. According to the petitioner, the courses that its offers from part of a curriculum recognised by law including vocational courses covered in Group- 15 to Schedule-I of the List of Designated Trades under the Apprentice Act, 1961. The allegations in the show cause notice were to the effect that the petitioner was not certified to enjoy recognition from the AICTE/UGC or any applicable authority.
4. The petitioner responded, both on the ground of maintainability as well as on the merits, the latter including the argument that the proceedings were bereft of limitation. Despite the objections raised, an order-in-original has come to be passed by the Principal Commissioner of CGST & Central Excise (R1) on 07.02.2009, rejecting the objections and confirming the proposals contained in the show cause notice.
5. The submission of Ms.Radhika Chandrasekhar, learned counsel, are as follows. Show cause notice dated 30.08.2018 was issued by the Director General of GST Intelligence proposing the levy of service tax for the period 01.01.2013 to 30.06.2017. Thoug
