1. Heard both the learned Counsel, Shri Seervai for the petitioners and Shri Desai for the respondents.
2. Petition has been admitted on 19th March, 1997 and rule on interim relief was issued which we have heard today. Challenge is to the imposition of Service Tax on courier agencies. The petitioners have challenged the legislative competence of the Parliament in respect of some of the provisions of the Finance Act, 1994 as amended by Finance (2) Act of 1996. It is not necessary at this stage to go into the details of the controversy. An Affidavit-in-reply filed by Shri Vasudev, Deputy Commissioner of Central Excise, Bombay raising a plea that the tax in question is a tax on services provided by the Courier Agencies in relation to the door to door transportation of time sensitive documents, goods and/or articles and not on the documents, goods and/or articles. It is therefore, contended that imposing the said service tax was well within the legislative competence of the Parliament under Article 248 r.w. entry 97 of list 1 of the 7th Schedule to the Constitution of India viz.; the residuary entry. It is denied that the impugned legislation is without the authority of law or is a colorable exercise of legislative power.
3. It is well settled that while considering the plea for say of recovery of a tax, the court must proceed on the presumption that the enactment is constitutionally valid. As far as granting stay or injunction in the matter of imposition and or collection of taxes is concerned, the Supreme Court has clearly indicated in the case of Siliguri Municipality and Others v. Amalendu Das and Others - : [1984]146ITR624(SC) the precaution to be exercised by the courts. It is well settled that, normally, High Court should not, as a rule, in proceedings under Article 226 of the Constitution of India, grant any stay on recovery of tax save under very exceptional circumstances. The grant of stay in tax matters should be an exception and not the rule.
4. In our prima facie view, at this stage, no exceptional circumstances have been pointed out and hence we must go by the rule. In this view of the matter, it is not possible for us to entertain Shri Seervai's plea for grant of stay in terms of Prayer Clause (d)(iii)(a). It must be mentioned in fairness of Shri Seervai, that he didn't press for stay in terms of (b), (c) and (d) of sub-clause (iii) of Prayer Clause (d). Hence the prayer for stay and/or injunction in terms of Prayer Clause (d) is hereby rejected.
5. As far as relief in terms of Prayer Clause (e) is concerned, we make the following interim order :
ORDER
(i) All Regional offices/branches/billing and non-billing stations of each of the petitioners/courier agency/courier company shall be offered within a month from today for registration having regard to the jurisdiction in which they are located.
(ii) Each petitioner/courier agency/courier company shall file a single quarterly return in Form ST 3 even if it has several regional offices/billing stations/branches. Similarly each petitioner/courier agency/courier company shall file a single monthly Form TR 6 for deposition all the service tax collected by all its branches/offices.
(iii) Such returns/forms in (b) above shall be filed with the Central Excise Officer having jurisdiction where the registered office or head office or principal place of business of each of the petitioners/courier agency/courier company is located.
(iv) There shall be a single assessment for each petitioner/courier company/courier concern though it may have several branches/offices/billing and non-billing stations. Such assessments would be made by the Central Excise Officer where the registered office/head office/principal place of business of the petitioner/courier agency/company is located.
6. Liberty to move for a fixed date of hearing.