Disposed

Ms Ripley And Company Ltd. Through Its Director Debtosh Dey v. Union Of India Through The Commissioner Central Excise And Service Tax And Ors.

Jharkhand HC20 Aug 2018WPC/4971/2016

Case brief

AI extract

What is this about?

The Court directed the Commissioner to decide a pending show cause notice issued to the petitioner regarding service tax liability on goods transport services within four months, pending a determination on the main writ petitions regarding tax segregation and retention of funds.

What did the court decide?

Direction to decide the show cause notice within four months and reservation of liberty for a money suit.

Ms Ripley And Company Ltd. Through… — Constitutional and Fundamental Rights | Jharkhand HC (2018)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P.(T) No.4971 of 2016

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M/s Ripley & Company Ltd., having its Ranchi Office at Old House of Mr. H. Das, Devi Mandap Road, Hesal, P.O. Hehal, P.S. Sukhdev Nagar, Ranchi834005, District-Ranchi through its Director, Debtosh Dey, son of late Jibantosh Dey, resident of Flat 2D-903, Avisikta-1, Kalitala Road, Purbachal, P.O. and P.S. Purbachal, Kolkata 700 078 (West Bengal)...……........ Petitioner

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Versus

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1. Union of India, through the Commissioner, Central Excise & Service Tax, Ranchi-1, Central Revenue Building, 5, Main Road, P.O. Hindpiri, P.S. Kotwali, Ranchi 834 001, District-Ranchi

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2. Assistant Commissioner (Adjudication), Central Excise and Service Tax, Central Revenue Building, 5, Main Road, P.O. Hindpiri, P.S. Kotwali, Ranchi 834 001, District-Ranchi

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3. Central Coalfields Limited, through its Chairman-cum-Managing Director, Darbhanga House, Ranchi, P.O.-G.P.O., P.S. Kotwali, District-Ranchi-834001 4. General Manager, Transport, Central Coalfields Ltd., Darbhanga House, Ranchi, P.O.-G.P.O., P.S. Kotwali, District-Ranchi-834001

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5. General Manager, Piparwar Area, Central Coalfield Ltd., P.O. and P.S. Bachra, District-Chatra

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6. Area Finance Manager, Piparwar Area, Central Coalfield Ltd., P.O. and P.S. Bachra, District-Chatra …… Respondents

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CORAM: HON'BLE MR. JUSTICE D.N. PATEL HON’BLE MR. JUSTICE AMITAV K. GUPTA

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For the Petitioner : Mr. Sumeet Gadodia, Advocate For the Respondents : Mr. Ratnesh Kumar, Advocate Mr. Amit Kumar Das, Advocate

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15/ Dated, 20th August, 2018 Oral Order:

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Per: D.N. Patel, J.

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1. This writ petition has been preferred mainly for the reason that the services which are rendered by this petitioner to respondent No.3-Central Coalfields Limited are of two types:

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(a) Extraction and removal of the coal,

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(b) Transportation of coal.

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2. Much has been argued out by the counsel for the petitioner about clause No.23.18 of general terms and conditions of the contract, which are at Annexure-1 to the memo of this writ petition, whereby it is conveyed that the service tax liabilities are to be reimbursed by respondent No.3 to this petitioner. So far as service tax liability upon goods transportation service is concerned, by virtue of law, especially for the period running from 19th November, 2006 to 18 th November, 2009 was upon respondent No.3 (service receiver) which is

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popularly known as “reverse charge mechanism”.

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3. It further appears from the facts of the case that initially a letter was written by the Union of India to respondent No.3 on 13^th July, 2012 to the Central Coalfields Limited that why they have not paid the service tax upon the services received by them - “goods transport services” - from this petitioner.

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4. Respondent No.3-Central Coalfields Limited replied on 24^th July, 2012 (Annexure-4 to the memo of this writ petition) which is a major bone of contention in this petition. By virtue of this reply, it is alleged by the petitioner that the tax liability to be borne by respondent No.3 has now been shifted to this petitioner because the contract of excavation of the coal and removal of the coal and transportation of the coal was a composite contract and two types of services cannot be segregated from each other. The contention of respondent No.3 – Central Coalfields Limited in the reply dated 24^th July, 2012 (Annexure-4 to the memo of this writ petition) is that both the contracts are so interwoven with each other that they cannot be segregated and hence part of the contract cannot be levelled as “goods transportation services” and hence there is no liability upon respondent No.3 whatsoever for the period mentioned hereinabove which is popularly known as reverse charge mechanism.

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5. Be that as it may, the fact remains that later on show cause notice was given by the Union of India to this petitioner dated 1st October, 2012 (Annexure-6 to the memo of this writ petition) for payment of tax which is at Rs.1,53,09,471/- . This show cause notice has already been replied by this petitioner in reply dated 1^st November, 2012 (Annexure-7 to the memo of this writ petition).

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6. The show cause notice given by Union of India dated 1st October, 2012 (Annexure-6) is yet to be decided by the Union of India.

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7. It is submitted by the counsel for the Union of India that it is kept in Call Book because of an order passed by Hon'ble Orissa High Court in OTAPL No.9 of 2008, dated 04.05.2016 which is at Annexure-A to the counter affidavit filed by respondent No.1.

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8. We have perused the orders passed by Hon'ble the Supreme Court of India which are at Annexures 15, 16 and 17 of the rejoinder affidavit filed by

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this petitioner as well as the order passed by Hon'ble Orissa High Court.

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9. It appears from the orders passed by Hon'ble the Supreme Court and Orissa High Court that now there are three types of services which are rendered:

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(a) mining of mineral oil and gas activity,

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(b) goods transport agency services, and

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(c) cargo handling services.

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Thus, the issue involved in this case is about the aforesaid three type of services and there can be other types of services also which ought to be now decided by the Union of India, instead of, keeping the matter in Call Book.

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10. We, hereby, direct the Commissioner, Central Goods and Services Tax and Central Excise, Ranchi to decide the show cause notice issued to this petitioner which is dated 1st October, 2012 (Annexure-6 to the memo of this writ petition) keeping in mind the reply filed by the petitioner and keeping in mind the law, rules, regulations and the decisions rendered by Hon'ble the Supreme Court as well as other binding decisions. It is expected from the Commissioner, Central Goods and Services Tax and Central Excise, Ranchi that the show cause notice dated 1^st October, 2012 shall be decided within a period of four months from the date of receipt of a copy of this order.

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11. All the issues raised in this writ petition are kept open including the issue of receiving the money by this petitioner from Central Coalfields Limited which is alleged to have been retained by the Central Coalfields Limited. Liberty is reserved with this petitioner to prefer application before this Court, in case of any difficulty. Money suit type of prayer made by this petitioner of receiving certain amount from Central Coalfields Limited shall be taken care of after the show cause notice, as stated hereinabove, is decided. The Commissioner, Central Goods and Services Tax and Central Excise, Ranchi shall give adequate opportunity of being heard to the petitioner.

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12. This writ petition is, hereby, disposed of.

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(D.N. Patel, J.)

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(Amitav K. Gupta, J.)

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NKC/Tarun

Ms Ripley And Company Ltd. Through Its Director Debtosh Dey v. Union Of India Through The Commissioner Central Excise And Service Tax And Ors.

Case brief

What is this about?

What did the court decide?

Ms Ripley And Company Ltd. Through Its Director Debtosh Dey v. Union Of India Through The Commissioner Central Excise And Service Tax And Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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