Rana Deb Saikia Vs Union of India and 3 Ors.

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GAHC010236882023

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2026:GAU-AS:2217

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/6477/2023

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RANA DEB SAIKIA

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S/O GUNA KANTA SAIKIA, P/R/O HOUSE NO. 20, N.T. ROAD, NORTH LAKHIMPUR, DIST-LAHIMPUR, ASSAM, PIN-787001. P/R/A A-71, GROUND FLOOR, CHITTARANJAN PARK, NEW DELHI

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VERSUS

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UNION OF INDIA AND 3 ORS REPRESENTED BY ITS SECRETARY TO THE GOVERNMENT OF INDIA, DEPARTMENT OF GENERAL SERVICE TAXES, NEW DELHI, PIN-110001

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2:THE PRINCIPAL COMMISSIONER OF CGST DIBRUGARH MILAN NAGAR LANE-F P.O.-C.R. BUILDING DIBRUGARH ASSAM PIN-786003

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3:THE SUPERINTENDENT (ADJ.) CGST DIBRUGARH MILAN NAGAR LANE-F P.O.-C.R. BUILDING DIBRUGARH ASSAM PIN-786003 4:THE SUPERINTENDENT CGST

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NORTH LAKHIMPUR RANGE K.B. ROAD NORTH LAKHIMPU

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BEFORE

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HON’BLE MR. JUSTICE DEVASHIS BARUAH

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For the Petitioner(s) : Mr. U. K. Das, Advocate

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For the Respondent(s) : Mr. S. C. Keyal, SC, CGST

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Date on which Judgment was reserved : N/A

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Date of Pronouncement of Judgment : 10.02.2026

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Whether the pronouncement is of the Operative Part of the Judgment : No

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Whether the full Judgment has been Pronounced : Yes

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JUDGMENT AND ORDER (ORAL)

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Heard Mr. U. K. Das, the learned counsel appearing on behalf

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of the Petitioner and Mr. S. C. Keyal, the learned Standing Counsel appearing on behalf of all the Respondent Nos. 1 to 4.

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The present writ petition has been filed challenging the order dated 25.11.2022 passed by the Respondent No.2 thereby imposing a liability of service tax to the tune of Rs.2,27,27,960/- for the Financial Year 2016-17 and further penalty in terms with Sections 77 and 78 of the Finance Act, 1994 along with interest.

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BRIEF FACTS OF THE INSTANT CASE:

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The brief facts which led to the filing of the instant writ petition are that a Demand cum Show Cause Notice was issued on 20.10.2021 alleging inter alia that the Petitioner had made willful suppression of material facts to evade payment of service tax to the tune of Rs.2,27,27,960/- including Krishi Kalyan Cess and Swachh Bharat Cess on the services rendered by the Petitioner during the Financial Year 2016-17 thereby violating the provisions of Sections 66B, 67 and 68 of Chapter-V of the Finance Act, 1994 read with Rule 6 and 7 of the Service Tax Rules, 1994. In addition to that, vide the said Show Cause Notice dated 20.10.2021, the Petitioner was also asked to show cause as to why penalty as well as interest as per the appropriate provisions of law should not be imposed upon the Petitioner.

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To the said Show Cause Notice, the Petitioner submitted a reply on 15.11.2021. In the said reply, the Petitioner submitted that the Petitioner was a registered civil contractor and the contract receipts are from none other than the Central Government and State Government Departments and under such circumstances, the Petitioner was exempted under the Mega Exemption Notification No.25/2012-ST dated 20.06.2012. In addition to that, the

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Petitioner has also mentioned in the said Show Cause Reply that as the Petitioner was a Goods Transport Agency, the liability to pay service tax is not upon the service tax provider rather it is upon the recipient of the service and in that regard, the Petitioner claimed benefits in terms with the Notification No.25/2012-ST dated 20.06.2012. It was also mentioned that the Petitioner provided service of transportation to Calcom Cements India Ltd. The Petitioner along with the said Show Cause reply also submitted that Bank Statement, 26AS, Audited Balance Sheet and Profit and Loss Account and in addition to that, the Petitioner also informed that if any other documents are needed for assessing, sufficient time may be granted to the Petitioner for submission of the same.

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The record further reveals that the Petitioner was duly intimated vide a communication dated 26.10.2022 that a personal hearing would be afforded to the Petitioner on 02.11.2022 at 13:00 hours. The said personal hearing was taken up virtually at the request of the authorized person who represented the Petitioner. Thereupon, the Respondent No.2 passed an order dated 25.11.2022 thereby confirming the demand of service tax and cess amounting to Rs.2,27,27,960/- along with imposition of penalty of an equal amount in terms with Section 78 of the Finance Act, 1994 and further an amount of Rs.10,000/- as penalty under Section 77

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of the Finance Act, 1994.

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It is also very pertinent to take note of that in the impugned order dated 25.11.2022, it was also mentioned that if the Petitioner deposited the entire amount of service tax within 30 days from the communication of the said order, there would be reduction of penalty imposed to the tune of 75% or in other words, the Petitioner would only have to pay a reduced penalty of 25%.

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The Petitioner thereupon after almost a passage of 1 (one) year, approached this Court by filing the present writ petition on 12.10.2023. The Petitioner has also stated in the writ petition that though there is an alternative remedy available under Section 86 of the Finance Act, 1994 but if the Petitioner has to approach the Appellate Authority, the Petitioner has to make a pre-deposit of 7.5% of the impugned demand and under such circumstances, the Petitioner has approached this Court.

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The materials on record show that this Court had issued notice on 24.11.2023 but there was no interim order passed. The order sheets of the present proceedings also show that the Respondents herein have categorically submitted before this Court on 16.12.2025 that the Respondents would not file affidavit.

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SUBMISSIONS MADE BY THE LEARNED COUNSELS FOR THE PARTIES:

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Mr. U. K. Das, the learned counsel appearing on behalf of the Petitioner submitted that the Petitioner herein is entitled to the exemption from payment of service tax in view of Clause 12A of the Notification No.25/2012-ST dated 20.06.2012. In that regard, the learned counsel submitted that this aspect that the Petitioner is entitled to exemption was not noticed or decided by the Respondent No.2 while passing the impugned order dated 25.11.2022 and as such, direction should be issued upon the Respondent No.2 to revisit the impugned order dated 25.11.2022 by permitting the Petitioner to submit the necessary documents which would show that the Petitioner is entitled to exemption in terms with the Notification No.25/2012 dated 20.06.2012.

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The learned counsel for the Petitioner further referred to the Notification No.30/2012-Service Tax dated 20.06.2012 and submitted that in terms with the said notification, it is the recipient of the service in the case when the taxable service is transportation who is to make payment of the service tax and not the Goods Transport Agency which is the service provider. He therefore submitted that these aspects could have been looked into by the Respondent No.2 while passing the impugned order more

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particularly taking into consideration that the Petitioner in its Show Cause reply dated 20.10.2021 had duly claimed exemption on the basis of these two notifications. He therefore submitted that this is a fit case for setting aside the impugned order dated 25.11.2022 and remanding the matter back to the Respondent No.2 for a fresh adjudication.

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Per contra, Mr. S. C. Keyal, the learned Standing counsel appearing on behalf of the Respondent Nos. 1 to 4 submitted that the Petitioner had an alternative remedy and on the ground that there is a requirement of depositing 7.5% of the disputed demand, the Petitioner cannot claim that the said remedy is not an alternative and efficacious remedy more so when the said provision of pre-deposit of 7.5% of the disputed demand have been held to be constitutional by various judgments of this Court. The learned Standing counsel further submitted that this Court would only be exercising the powers of judicial review to see as to whether on the materials available before the Respondent No.2, the order so passed is an unreasonable and irrational and not to sit as an Appellate Court over the impugned order dated 25.11.2022 passed by the Respondent No.2. He further submitted that while it is a settled law that the imposition of tax has to be within the four corners of the charging section, similarly when an assessee claims

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exemption, it is the requirement of law that he also satisfies the Authority that he is entitled to the exemption within the four corners of notification of the exemption.

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ANALYSIS AND DETERMINATION:

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This Court has duly heard the learned counsels appearing on behalf of the parties and perused the materials on record.

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The Petitioner for the first time has placed before this Court certain documents which the Petitioner claims that it would show that the Petitioner is entitled to exemption in terms with Clause 12A of the Notification No.25/2012 dated 20.06.2012. This Court finds it very pertinent to take note of Paragraph No.4.4 of the impugned order dated 25.11.2022 which would show that the Respondent No.2 had duly considered the Notification bearing No.25/2012 dated 20.06.2012 and it was on account of the Petitioner not submitting the required documents which would show that the Petitioner would be entitled to exemption, the Respondent No.2 did not find that the Petitioner is entitled to exemption. Paragraph No.4.4 of the impugned order dated 25.11.2022 being relevant is reproduced herein under:

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“ 4.4 It has been observed that with regard to the Contract Receipts from

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State/Central Govt. Departments during the Financial year 2016-17, the Noticee has not submitted copies of any Work Order, Running Bills, Payment Vouchers, Invoices issued by them for rendering the taxable services during the relevant period. Hence, it was not possible to know the nature of services provided by them as well as to ascertain whether the services are exempted under Notification No.25/2012-ST dated 20.06.2012 as amended. Also, the Noticee failed to submit Reconciliation Statement, working sheet and other relevant documents to correlate the amounts credited in their Form 26AS with the relevant work orders. Also, the notice failed to provide explanation/clarification supported by documentary evidences to substantiate their claim for exemption from payment of Service Tax including Cess under specific entry of Mega Exemption Notification No.25/2012-ST dated 20.06.2012 as amended.”

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It is also seen that insofar as the claims of the Petitioner in respect to the Notification No.30/2012-ST dated 20.06.2012, the same was also duly considered by the Respondent No.2 and this aspect would be apparent from a perusal of Paragraph No.4.5 of the impugned order dated 25.11.2022 which is also reproduced herein under:

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“ 4.5. Further, with regard to the amounts received under Carriage Contract during the material period, the Noticee has not submitted contract documents and copies of invoices issued by them to the Service Recipient to substantiate that the Service Recipient is liable to pay the Service Tax including Cess on the contract receipts under Reverse Charge Mechanism as provided by the Notification No.30/2012-ST dated 20.06.2012 as amended.”

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In addition to that, this Court also duly takes note of the observations made by the Respondent No.2 in the impugned order dated 25.11.2022 more particularly at Paragraph No.4.8 which is also reproduced herein under:

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“ 4.8 . With regard to suppression of material facts as alleged in the instant Show Cause Notice, it is observed that though the noticee had provided taxable services to its clients/parties during the relevant period but had not disclosed the value of taxable services in their ST-3 Returns filed electronically for the relevant period. Further, as a bonafide noticee, they should have correctly declared the gross value of taxable services provided against each category of services rendered by them during the relevant period in their periodical ST-3 Returns and claim exemption from Service Tax liability in the said Returns under the relevant exemption notifications, if any. In their Written Submission also the noticee failed to submit relevant document for claiming exemption from payment of Service Tax and Cess under Service Tax Notification Nos. 25/2012-ST dated 20.06.2012 and 30/2012-ST dated 20.06.2012 for the relevant period. Thus, the notice has failed to comply with the statutory requirements provided in the Service Tax Acts & Rules, which has eventually proved the malafide intention of the noticee to evade the tax due to the Govt. Exchequer. It is pertinent to mention here that to collect information regarding Third Party, department had to approach the income tax authority to know the quantum of taxable service provided by the noticee during the material period. Had the department not initiated the enquiry, the Service Tax liability on the part of the Noticee would have remained hidden and the assessment of service tax due to the Govt. Exchequer would have not known to the department. Therefore, invocation of extended period under Section 73(1) of the Finance Act, 1994 as envisaged in the Demand cum Show Cause Notice appeared justified.”

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In the backdrop of the above, it is noteworthy to mention that it is an admitted case on the part of the Petitioner that the Petitioner has not submitted any documents which would show that the Petitioner was entitled to the exemptions under both the notifications. Under such circumstances, in exercise of the powers of Article 226 of the Constitution of India, this Court cannot come to an opinion that the impugned order is unreasonable, irrational or illegal. It appears that the said order has been passed taking into consideration the materials on record which were before the Respondent No.2.

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This Court further finds it also pertinent to take note of the judgment of the Supreme Court in the case of Motiram Tolaram and Another Vs. Union of India and Another reported in (1999) 6 SCC 375 wherein the Supreme Court had categorically observed that in order to claim exemption, the assessee has also to place the necessary materials before the competent Authority which would entitle the assessee to the benefit of such exemption. Paragraph No.9 of the said judgment being relevant is reproduced herein under:

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“ 9. When under the provisions of the Excise Act an assessee wants to claim benefit of an exemption notification, then the onus is on him to prove and show that the conditions, if any, which are imposed by the exemption notification have been satisfied. In the notification in question, the condition

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for getting the benefit of the lower rate of duty is that on the raw material used appropriate amount of duty has been paid here. If perchance or for any reason, the manufacturer of polyvinyl alcohol in India is unable to prove or show that the same has been manufactured from vinyl acetate monomer on which appropriate amount of duty of excise has been paid, then the said manufacturer would not be entitled to get the benefit of the said notification. That in fact the sole Indian manufacturer may have been able to prove in every case that appropriate duty-paid raw material has been used in the manufacture of polyvinyl alcohol does not mean that the requirement of proving the same is dispensed with.”

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The materials on record as well as the perusal of the pleadings would show that the Petitioner has also realized the mistake that it was on account of the fault of the Petitioner that the impugned order was passed. This Court in exercise of the powers under Article 226 of the Constitution cannot direct the Statutory Authority to reconsider the decision on the basis of the fault of the Petitioner in producing those documents. Be that as it may, the Petitioner has an alternative and efficacious remedy by way of an appeal. The appeal being a continuation of the original proceedings, the Petitioner can very well produce such documents which would have entitled the Petitioner to such exemption.

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CONCLUSION:

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Accordingly, this Court therefore disposes of the instant writ

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petition with the following observations and directions:

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(i) This Court is not inclined to entertain the instant writ petition in view of the fact that there is an alternative and efficacious remedy.

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(ii) The non-entertaining of the instant writ petition by this Court shall not preclude the Petitioner to prefer an appeal before the learned Customs, Excise and Service Tax Appellate Tribunal, Calcutta which is the Appellate forum in terms with Section 86 of the Finance Act, 1994.

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(iii) The Petitioner herein if prefers an appeal, the period during the which the instant writ petition is pending before this Court i.e. w.e.f. 12.10.2023 till date be excluded while computing the period of limitation. The benefit of Section 14 of the Limitation Act, 1963 is provided to the Petitioner taking into account that the Petitioner had been bona fidely pursuing the present proceedings.

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(iv) Taking into account that the learned Customs, Excise and Service Tax Appellate Tribunal, Calcutta would be the Appellate forum, the Petitioner herein would be at liberty to file such documents so advised to show that the Petitioner is entitled to such exemption.

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(v) The observations so made in the instant proceedings pertains to an adjudication as to whether this Court would like to entertain the writ petition in view of the materials placed before this Court. The observations in relation to the impugned order dated 25.11.2022 however shall not prejudice the Petitioner on merits, if the appeal is taken up by the learned Customs, Excise and Service Tax Appellate Tribunal, Calcutta.

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Digitally signed JUDGE Bijoy by Bijoy Saha Saha Date: 2026.02.17 10:32:22 +05'30'

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Rana Deb Saikia v. Union of India and 3 Ors.

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