Lau Bee Lan J:

Background

[1] The applicant has obtained leave of the court on 18 May 2004 to move the court for:-

(a) an order of certiorari to quash the decision of the respondent dated 17 December 2003 addressed to Apollo Catering which was received by KPMG Tax Services Sdn Bhd ("KPMG") on behalf of Apollo Catering on 21 January 2004, whereby the respondent decided that the services provided by Apollo Catering to Samling Flooring Sdn. Bhd and Samling Fibre Sdn Bhd ("Samling") are liable to service tax under the Service Tax Act 1975 (Act 151) ("the Act") ;

(b) a declaration that the respondent's decision is erroneous in law and that the services are not liable to service tax under the Act;

(c) an order of prohibition to prohibit the respondent from making demands or taking any steps to enforce or implement the respondent's decision or any similar decision or findings of the respondent; and

(d) an order of mandamus to compel the respondent to refund to the applicant the service tax and penalty amounting to RM4,435.62 which was paid under protest to the Director-General of Customs.

[2] The application of the applicant is supported by altogether six affidavits (encls. 3, 4, 5, 7, 21 and 30), of which two are corrective affidavits (encls. 5 and 7) and opposed by the respondent through the affidavit of Azizah binti Ibrahim affirmed on 30 March 2006 (encl. 19).

[3] The facts leading to the commencement of the judicial review application by the applicant against the respondent are as follows. Briefly, vide a letter dated 16 September 2002 (exh. LTK2) the Customs HQ wrote to the Customs Miri that the services provided by Apollo Catering, Apollo Enterprise and Apollo Food Supply came under Group C, Schedule 2 of the Service Tax Regulations 1975 ("the regulations") and should be subject to tax under the Act. Vide a letter dated 30 October 2002 (exh. LTK3), KPMG, acting on behalf of Apollo Catering, Apollo Enterprise and Apollo Food Supply wrote to the DG of Customs to appeal against the Customs HQ's decision. Vide a notice of demand dated 29 November 2002 (exh. LTK4) Customs Miri wrote to Apollo Catering for the period from 1 October 1999 to 31 December 2001. By a letter dated 14 January 2003 (exh. LTK8) the DG of Customs wrote to KPMG that the appeal vide their letter (exh. LTK3) was rejected and the decision in exh. LTK2 stood and that any further appeal was to be made to the respondent. By a notice of demand dated 28 January 2003 (exh. LTK9), Customs Miri wrote to Apollo Catering demanding for payment of service tax and penalties for the period from 1 January 2002 to 31 August 2002 whereby KPMG, on behalf of Apollo Catering, Apollo Enterprise and Apollo Food Supply appealed against the DG's decision (exh. LTK8) and to request for stand-over of the demands for payment in exhs. LTK4 and LTK9 vide letters dated 14 February 2003 and 12 March 2003 respectively (exhs. LTK10 and LTK11). There were an exchange of correspondences relating to Apollo Catering's request for payment by installment until finally the respondent's decision vide letter dated 17 December 2003 (exh. LTK16) stating that Apollo Catering's appeal in exh. LTK11 had been rejected and that the services provided by Apollo Catering to Samling were subject to service tax under the provisions of Group C, Schedule 2 of the regulations was received by KPMG on 21 January 2004. As at 27 February 2004 Apollo Catering had paid service tax and penalties amounting to RM4,435.62 as per receipts exhs. LTK17(a), (b) and (c).

[4] The respondent stated that the grounds in support of the application are contained in the statement filed pursuant to O. 53 r. 3(2) of the Rules of the High 1980 ("the RHC") (encl. 2). Although the said statement contained several grounds of challenge, based on the applicant's submission in reply (encl. 35) the applicant's two (2) grounds of challenge are:-

(i) the respondent acted in excess of jurisdiction/powers contained in the Act in arriving at the respond