Madras High Court
Tanjore Power Ltd vs Principal Commissioner on 19 September, 2022
W.A.No.2128 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.09.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MR.JUSTICE C.SARAVANAN
W.A.No.2128 of 2022 and
C.M.P.No.15819 of 2022
Tanjore Power Ltd.,
(Formerly known as Lanco Tanjore Power Company Ltd., and
earlier known as Aban Power Company Ltd.,)
Rep. by its Chief Financial Officer S Kathir Kamanathan
No.25, GN Chetty Road,
T.Nagar, Chennai- 600 017. ... Appellant
-vs-
1. Principal Commissioner
Office of the Principal Commissioner of CGST and Central
Excise,
Chennai North Commissionerate,
No.26/1, Mahatma Gandhi Road,
Chennai- 600 034.
2. Superintendent of Central Excise,
Service Tax Division XVIII,
Service Tax Commissionerate Delhi IV,
CR Building I P Estate,
New Delhi 110002. ... Respondents
Prayer: Writ Appeal filed under Clause 15 of Letters Patent Act, to set aside the order
passed by the learned Judge in W.P.No.11593 of 2022 dated 07.06.2022.
1/6
https://www.mhc.tn.gov.in/judis
W.A.No.2128 of 2022
For Appellant : Mr. Joseph Prabakar
For Respondent : Mr.A.P.Srinivas
Senior Standing Counsel
***
JUDGMENT
S.VAIDYANATHAN.,J
and
C.SARAVANAN.,J
This Writ Appeal is filed against the order passed by the learned Judge in
W.P.No.11593 of 2022 dated 07.06.2022.
2. The Appellant/Writ Petitioner filed the Writ Petition in W.P.No.11593 of 2022,
challenging the order-in-original dated 07.02.2022, passed in terms of Finance Act,
1994 under which service tax is levied.
3. Earlier, the Appellant/Petitioner has approached this Court by way of Writ
Petition in W.P.No.39082 of 2015, challenging the Show Cause Notice issued prior to
the passing of the order impugned in W.P.No.11593 of 2022 and the same came to be
dismissed by this Court on 07.03.2006 which was dismissed against which W.A.No.709
of 2016 was filed, which was also dismissed on 23.11.2017.
4. The learned counsel appearing for the Appellant submitted that the
Appellant/Writ Petitioner engaged in the generation of electricity and set up a power
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W.A.No.2128 of 2022
plant near Tanjavur and entered into an agreement with General Electric Inc., USA for
maintenance of the plant. They have to pay service tax on reverse basis on quarterly
basis in US dollars which will be converted in the Indian currency. He further
submitted that the Appellant have paid the entire amount demanded with respect to
Service Tax for the period in question and without considering the same, the service
tax have been foisted on the Appellant by the Respondent without any jurisdiction and
the learned Single Judge also without taking note of said fact has dismissed the Writ
Petition filed by the Appellant. That apart, pointing upon the paragraph 6 in page no.4
of the order impugned in the Writ Petition,the learned counsel for the Appellant
submitted that the Appellant has already paid the service tax.
5. The learned standing counsel appearing for the Respondents submitted that the
learned Single Judge rightly taking note of all factual and legal issues has dismissed the
Writ Petition and therefore the same need not be interfered with.
6. Heard both sides. Perused the records.
7. Paragraph 13 of the order impugned in the Writ Petition reads as follows:
"The major argument of the assessee for non payment of service
tax is that the same was paid by the Indian branch of their service
provider viz. M/s. General Electric International Inc. situated at
Gurgaon. However, they have not submitted any documentary evidences
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W.A.No.2128 of 2022
to prove their stand. Contrarily, they have stated that it is the outlook of
the Department to verify the varacity of service tax payment from their
counterparts at the other end. However, it must be kept in mind that the
liability to pay service tax has been cast only upon the assessee and not
upon the service provider as already explained in the pre-paras. That
being so, it is the bounden duty of the assessee to pay the service tax that
was legitimately required to have been paid by them. They cannot be
resolved from the legitimate liability to pay tax by saying that their
liability had been discharged by the service provider. Even assuming
that the service tax had been so paid at the other end the only recourse to
set that right would be by way of a refund by the other party. Such
payment even if it had paid paid by the service provider cannot absolve
the liability cast upon the assessee, this notwithstanding the fact that the
service provider is not the Indian branch of the service provider M/s.
General Electric International Inc., USA. The claim of the assessee that
the Gurgaon branch is the actual service providor does not hold merit in
view of the undisputed fact that the agreement for maintenance had been
made only with M/s General Electric International Inc., USA and
admittedly all payments had also been made by the assessee only to M/s.
General Electric Inc., USA in US dollars. That being so, they cannot
suddenly claim that the service provider is the Indian branch and not the
foreign company."
8. From the above, it is clear that the Appellant has not produced any document to
prove their stand and hence are not inclined to accept the contention of the Appellant as
there is no materials as on date in support of the contentions of the Appellant. Since the
petitioner has got got alternate remedy of depositing 7.5% of the amount demanded, we
are not inclined to entertain this Appeal and the Appeal is devoid of merits.
9. In view of the same, this Writ Appeal stands dismissed giving liberty to the Appellant
to agitate before the Appellate authority by filing the Appeal and the Appellant authority shall
decide the issue within a period of three months from the date of receipt of filing of the
Appeal, provided the same is filed within 30 days period. No costs. Consequently, connected
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W.A.No.2128 of 2022
Miscellaneous Petition is closed.
[S.V.N., J.,] [C.S.N., J]
19.09.2022
Index: Yes / No
Internet: Yes / No
arr
To
1. Principal Commissioner
Office of the Principal Commissioner of CGST and Central
Excise,
Chennai North Commissionerate,
No.26/1, Mahatma Gandhi Road,
Chennai- 600 034.
2. Superintendent of Central Excise,
Service Tax Division XVIII,
Service Tax Commissionerate Delhi IV,
CR Building I P Estate,
New Delhi 110002.
https://www.mhc.tn.gov.in/judis
W.A.No.2128 of 2022
S.VAIDYANATHAN, J.
and
C.SARAVANAN,J.
arr
W.A.No.2128 of 2022
19.09.2022
https://www.mhc.tn.gov.in/judis
