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M/S Jalan Concast Ltd. And Others. v. Union Of India Thru' Secretary Finance Miny.Of Finance& Oth. - WRIT TAX No. 488 of 2005  RD-AH 1915 (12 August 2005)
Civil Misc. Writ Petition No. 488 of 2005.
M/S Jalan Concast Ltd, and others. Petitioners.
Union of India and others.. Respondents.
Civil Misc. Writ Petition No. 1129 of 2005.
M/S M/S Prachi Leather Limited, Kanpur. Petitioners.
Union of India and another. Respondents.
Hon'ble R. K. Agrawal, J.
Hon'ble Rajes Kumar, J.
By means of the separate writ petitions filed under Article 226 of the Constitution of India, the petitioners, namely, m/s Jalan Concast Ltd and along with 14 other persons and m/s Prachi Leather Limited along with one another person seek the following common relief:
"(a). Issue a suitable writ, order or direction declaring Notification No. 35 of 2004 Service Tax dated 3rd December, 2004 (Annexure-1 to the writ petition) as ultra vires chapter 5 of the Finance Act, 1994 as amended from time to time;
(b). Issue a suitable writ, order or direction declaring Notification No. 35 of 2004 Service Tax dated 3rd December, 2004 (Annexure-1 to the writ petition) beyond the legislative competence of the Union of India;
(c). Issue any other suitable Writ, order or direction declaring Section 68 (1A) of the FinanceAct, 1994 as amended from time to time as ultra vires the legislative competence of the Union of India;
(d). issue any other suitable Writ, order or direction which this Hon'ble Court may deem fit and proper on the facts and circumstances of the case;
(e). award the cost of the petition in favour of the petitioners.
Briefly stated the facts giving rise to the present writ petition are as follows.
According to the petitioners,, they are manufacturer of various goods, which after payment of excise duty are despatched through various transport agencies to different customers. They also purchase raw materials from various persons and receive the goods sent by those persons through various transport agencies as the consignee of the goods.
The grievance of the petitioners is that they are required to pay service tax on goods, which they send through transport agencies. According to them, they are not liable to pay any tax and further they are not required to get themselves registered and to comply with the provisions relating to the registration, filing of returns, furnishing of information, maintenance of documents and record etc., non compliance of which entails penal consequences service tax.
We have heard Sri Pankaj Bhatia, learned counsel for the petitioners, Sri S.F.A. Naqvi and Sri R. K. Tripathi on behalf of the respondents and have perused the writ petition and it annexures.
We find that the controversy raised in these writ petitions is squarely covered by the recent decision of the Apex Court in the case of Gujarat Ambuja Cements Ltd. and another Versus Union of India and another reported in (2005) 4 Supreme Court Cases, 214, wherein, the Apex Court has upheld the levy of service tax upon the consignor pursuant to the amendments made in the Finance Act, 1994 by the Finance Act, 2000 and 2003.
Submission of Sri Pankaj Bhatia, learned counsel for the petitioners that even if it is assumed that the levy of service tax is on the transporter yet the consignor cannot be treated to be an assessee and, therefore, the said provisions are not applicable is devoid of any substance. In Paragraphs 34 and 38 of the report, the Apex Court has exhaustively dealt with the similar submission and has not accepted it. We, therefore, do not find any merit in these writ petitions.
The writ petitions are accordingly dismissed. The interim order dated 18.03.2005 passed in Civil Misc. Writ Petition No. 488 of 2005 shall stand discharged.
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