COMMON ORDER

The petitioners are Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO), represented by its respective Superintending Engineer/Chief Engineer of various Circles more specifically, Distribution Circle, Thermal Power Station and Transmission Circle.

2.Since the prayers sought for in all the writ petitions are identical, the writ petitions were heard together and with the consent of the parties, Writ Petition No.15388 of 2018 is taken as the lead case and the facts set out therein are taken up for consideration to decide the writ petitions. 3.The petitioner states that TANGEDCO forms part of Tamil Nadu Electricity Board, which is wholly owned and controlled by the State of Tamil Nadu. The petitioner is distributing electricity to the customers either domestic or commercial/industrial in respect of the areas falling under the jurisdiction.

4.The first respondent issued a show cause notice dated 30.10.2017, calling upon the petitioner to show cause as to why service tax should not be imposed on them in respect of certain services rendered by the petitioner, which is not falling under the Negative List of the Finance Act, 1994 (hereinafter referred to as "the Act"). The petitioner has challenged the very show cause notice mainly on the ground that the show cause notice was issued without jurisdiction and the petitioner is not falling under the definition "service provider" so as to issue show cause notice with reference to certain services rendered by the petitioner. Undoubtedly, Section 66D(k) of the Act contemplates that “transmission or distribution of electricity by any electricity transmission or distribution utility” is in the Negative List and therefore, the incidental services falling under the transmission or distribution of electricity are also not taxable and thus, the issuance of very show cause notice is not falling under the definition of “service” so as to respond. Thus, the petitioner is constrained to move the present writ petition.

5.The learned counsel for the writ petitioner mainly contended that they are challenging the proposal/levy of service tax on certain amounts collected by the unit, viz., (i) liquidated damages for non-performance or partial performance of the contracts from the contractors; (ii) cheque dishonour charges from consumers when the cheque given for payment of current consumption charges returned unpaid; (iii) for delayed payment of current consumption charges, belated payment charges are collected from the consumers (belated payment surcharge); (iv) forfeiture of EMD charges for not fulfilling the contracts from contractors; and (v) fine and penalty amounts from consumers who indulge in theft of energy.

6.By referring to Section 66E(e) of the Act, alleging that the above activities will have to be treated as “declared services”, it is contended that there is no dispute in respect of “declared service” under Section 66E of the Act. Therefore, the very issuance of show cause notice is without jurisdiction.

7.The learned counsel for the petitioner contended that the officers of the Central Excise Department are authorised to perform the duties and powers under the Act and consequently, they became quasi-judicial authority. When there is a prohibition under the Act, nor any sanction under the Act, the authorities competent cannot issue any such show cause notice and thus, the notice itself is untenable, exceeding the jurisdiction and in violation of the provisions of the Act.

8.The learned counsel for the petitioner referring to Section 66D(k) of the Act, states that transmission or distribution of electricity by any electricity transmission or distribution utility is in the Negative List of the Act. Therefore, the incidental services would also fall within the ambit of transmission or distribution of electricity and thus, the demand of service tax for such incidental services has no sanction in law and the first respondent, who is a quasi judicial authority has exerci