M/S. Karnataka Power Transmission Vs. Principal Commissioner Of - Court Judgment

1/11 R IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE22D DAY OF OCTOBER, 2018 BEFORE THE HONBLE Dr.JUSTICE VINEET KOTHARI WRIT PETITION No.62960/2016 (T-TAR)BETWEEN :

M/S KARNATAKA POWER TRANSMISSION CORPORATION LIMITED NO.118, KAVERI BHAVAN K.G. ROAD, BENGALURU-560 009 (REPRESENTED BY SMT. RUTH GEORGE MIRAJKAR D/O GEORGE MIRAJKAR AGED ABOUT53YEARS FINANCIAL ADVISER (A&R) OF M/S KARNATAKA POWER TRANSMISSION CORPORATION LIMITED) (By Mr. V. RAGHURAMAN, ADV.,) AND:

1. ... PETITIONER PRINCIPAL COMMISSIONER OF CENTRAL EXCISE, LTU JSS TOWERS, 100 FT RING ROAD BSK III STAGE, BENGALURU-560 085.

2.

3. COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX LARGE TAX PAYER UNIT (AUDIT) NBCC PLAZA, PUSHPA VIHAR SAKET, NEW DELHI-110 017. CENTRAL BOARD OF CUSTOMS AND EXCISE OSD (CX-6), NORTH BLOCK, NEW DELHI-110 001. Date of Order 22-10-2018 W.P.No.62960/2016 M/s Karnataka Power Transmission Corporation Limited Vs. Principal Commissioner of Central Excise & Ors.
4. UNION OF INDIA REP. BY UNDER SECRETARY CENTRAL EXCISE WING, OSD (CX-6) CENTRAL BOARD OF CUSTOMS AND EXCISE NORTH BLOCK, NEW DELHI-110 001. THE ASSISTANT COMMISSIONER LTU, BANGALORE, LTU, JSS TOWERS100FT RING ROAD, BSK III STAGE BENGALURU-560085.

5. (By Mr. AMIT DESHPANDE, ADV.,)
... RESPONDENT

S THIS WRIT PETITION IS FILED UNDER ARTICLES226& 227 OF THE CONSTITUTION OF INDIA PRAYING TO WRIT OF DECLARATION OR ANY OTHER APPROPRIATE WRIT, ORDER OR DIRECTION IN THE NATURE OF A WRIT OF DECLARATION TO DECLARE THAT THE PROVISIONS OF SEC. 66E R/W SEC.65B(22) AND IN PARTICULAR SEC. 66E(e) OF THE FINANCE ACT, 1994 AT ANNEX-A AS UNCONSTITUTIONAL BEING VIOLATIVE OF ARTICLE246AND ARTICLE265OF THE CONSTITUTION AND ETC. THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN B GROUP, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER Mr. V. Raghuraman, Adv. for... Petitioner

Mr. Amit Deshpande, Adv. for... RESPONDENTS

1. The petitioner - Karnataka Power Transmission Corporation Limited (KPTCL) has filed this writ petition in this Court on 07.12.2016 challenging the impugned Show Cause Notice No.3/2016-17 dated 20.06.2016 Date of Order 22-10-2018 W.P.No.62960/2016 M/s Karnataka Power Transmission Corporation Limited Vs. Principal Commissioner of Central Excise & Ors.
vide Annexure-B issued by the Commissioner of Central Excise & Service Tax, Large Tax Payer Unit (Audit), New Delhi.

2. The main issue raised in the impugned show cause notice by the Respondent-Service Tax Department against the Government of Karnataka Undertaking KPTCL is that in the contracts awarded by the KPTCL to other various Contractors for erection of poles, installation of transformers, setting up of Sub Stations, maintenance of Sub stations etc., KPTCL has retained certain amounts from the total contract value from the Vendors Contractors known as Retention Amount and also the Earnest Money Deposit made at the time of giving of Tenders, which after a particular period was forfeited and treated as penalty by KPTCL, imposed on the Contractors for not fully executing the work in terms of the contract and that Retention amount was exigible to Service Tax and therefore, the petitioner KPTCL was Date of Order 22-10-2018 W.P.No.62960/2016 M/s Karnataka Power Transmission Corporation Limited Vs. Principal Commissioner of Central Excise & Ors.
called upon to show cause on the basis of certain audit objections raised by the Commissioner of Central Excise & Service Tax, Large Taxpayer Unit (Audit), as to why the service tax be not imposed on such forfeited Retention amount or Earnest Money Deposits in terms of S.66E(e) of the Finance Act, 1994, which defines the term Declared Services and clause(e) whereof amongst other clauses of Explanation appended to S.66(E) of the Act includes, agreeing to the obligation, to refrain from an act, or to tolerate an act or a situation or to do an act.

3. The Respondent-authority, prima-facie issued the said show cause notice on the ground that the penalty collected by the assessee-KPTCL in the form of forfeited Retention money, would fall under the said S.66(E)(e) of the Finance Act for tolerating an act or situation for non execution of works contracts within time by the Contractors and therefore, the penalty so Date of Order 22-10-2018 W.P.No.62960/2016 M/s Karnataka Power Transmission Corporation Limited Vs. Principal Commissioner of Central Excise & Ors.
collected by forfeiture of the Retention money or Earnest Money Deposits would be exigible to Service Tax under the head Declared Services and why it should not be so taxed is the main issue, on which the petitioner- KPTCL was called upon to show cause before the concerned authority having territorial jurisdiction over the petitioner namely, Central Excise & Service Tax, LTU, Bangalore.

4. The petitioner-KPTCL appears to have filed a reply before the Designated authority Prl.Commissioner of Central Excise & Service Tax, LTU, Bangalore, vide Annexure-F dated 12.02.2016, but before the said show cause notice could be adjudicated by the said concerned authority, the petitioner-KPTCL chose to file this writ petition in this Court and a co- ordinate Bench of this Court granted the interim order staying the operation of the impugned show cause notice on 09.06.2017, but however, later on, a question Date of Order 22-10-2018 W.P.No.62960/2016 M/s Karnataka Power Transmission Corporation Limited Vs. Principal Commissioner of Central Excise & Ors.
about the maintainability of the writ petition was raised on 17.09.2018 and the matter was fixed firstly for arguments on the question of maintainability of the writ petition.

5. Mr.V.Raghuraman, learned counsel appearing for the petitioner KPTCL submitted that the said show cause notice issued by the Commissioner of Central Excise & Service Tax, LTU (Audit), New Delhi, lacks territorial jurisdiction and therefore, the same deserves to be quashed.

6. This first submission itself is not at all sustainable, because the said authority sitting at Delhi has merely pointed out an audit objection and has called upon the petitioner KPTCL to show cause before the concerned Prl.Commissioner of Central Excise & Service Tax, LTU at Bengaluru itself and the petitioner KPTCL has also filed its objections before the said Prl.Commissioner at Bengaluru. Date of Order 22-10-2018 W.P.No.62960/2016 M/s Karnataka Power Transmission Corporation Limited Vs. Principal Commissioner of Central Excise & Ors.
7. There is no patent lack of jurisdiction with the Commissioner of Audit wing of the Department to call upon the petitioner KPTCL to show cause before the concerned Adjudicating Authority having territorial jurisdiction over the petitioner-KPTCL at Bangalore. If such a contention were to be accepted, the very purpose and meaning of audit objections working at the Central level would be rendered meaningless and therefore, this contention is liable to be rejected and the same is accordingly rejected.

8. The second contention regarding the validity of the said provisions of S.66(E)(e) of the Finance Act, 1994, is nothing but a wholly frivolous plea raised by the petitioner KPTCL, Government Undertaking, which was expected to be a more responsible litigant compared with others, just to maintain the writ petition against the show cause notice under Article 226 of the Constitution of India. A deeming definition of Date of Order 22-10-2018 W.P.No.62960/2016 M/s Karnataka Power Transmission Corporation Limited Vs. Principal Commissioner of Central Excise & Ors.
Declared Services to be taxable service in S.66(E) of the Act is fully within the legislative competence of Union of India and it does not detain this Court on a frivolous contention like this. There is nothing unconstitutional and ultra vires in the said definition.

9. This Court is surprised at the frivolous kind of plea raised by the Government Undertaking Corporation just to invoke the extraordinary jurisdiction of this Court against the Union of India challenging the vires of certain definition clause in the Tax levy enactment, which has stood for so long. Whether the services rendered by the petitioner-assessee are really taxable or not can be a matter of debate and legal contentions, but not the definition clause itself defining the objects and subjects of taxation itself, for which the Legislature has a wide legislative latitude as per settled legal position. The said contention is not only bereft of any merit but has been prematurely and unnecessarily raised in the Date of Order 22-10-2018 W.P.No.62960/2016 M/s Karnataka Power Transmission Corporation Limited Vs. Principal Commissioner of Central Excise & Ors.
present case. The said contention is therefore turned down and is rejected out rightly.

10. The contention of the learned counsel for the petitioner-assessee that show cause notice in question prejudges or proceeds on the basis of determination of questions is also equally bereft of merit. The proposed show cause notice has to indicate the reason for which the assessee is called upon to show cause and assessee is free to contend that levy of tax as proposed in show cause notice is not exigible for given reasons. The Adjudicating Authority is expected in law to deal with such contentions and give their findings and reasons. The tax enactment in question provides for a hierarchy of remedial measures and forums. All such contentions therefore should pass through that hierarchy of appeal forums. Prematurely raising such contentions under the garb of constitutional validity or so called substantial question of law is nothing but a futile attempt on the Date of Order 22-10-2018 W.P.No.62960/2016 M/s Karnataka Power Transmission Corporation Limited Vs. Principal Commissioner of Central Excise & Ors.
part of the assessee, unnecessarily encroaching upon he precious public time of the Constitutional Courts without allowing the competent adjudicating authorities or appellate authorities to apply their mind to the contentions raised by the assessee and then pass appropriate orders in the matter. Such an exercise of putting the cart before the horse is not at all called for in this case.

11. This Court is therefore of the clear and considered opinion that a Government Undertaking was clearly ill-advised to invoke the writ jurisdiction of this Court at the premature stage of show cause notice issued by the Service Tax Department and such premature writ petition deserves to be dismissed with costs for unnecessarily wasting the time of the Court.

12. The writ petition is accordingly dismissed with costs of Rs.50,000/- to be deposited by the petitioner KPTCL with the Registrar General of this Court within a Date of Order 22-10-2018 W.P.No.62960/2016 M/s Karnataka Power Transmission Corporation Limited Vs. Principal Commissioner of Central Excise & Ors.
period of two months from today, which upon deposit, may be remitted to the Prime Ministers Relief Sd/- JUDGE Fund. Srl.