Rajasthan High Court
Good Earth Travel Group India ... vs Union Of India on 7 December, 2021
Bench: Akil Kureshi, Uma Shanker Vyas
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Writ Petition No. 20642/2018
Good Earth Travel Group India Private Limited
----Petitioner
Versus
Union Of India
----Respondent
For Petitioner(s) : Mr. Pankaj Ghiya with
Mr. N.K. Jain and
Mr. Mayank Vyas
For Respondent(s) : Mr. R.D. Rastogi, ASG through VC
with Mr. Aditya Singh,
Mr. Kinshuk Jain,
Mr. Sorabh Jain
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
HON'BLE MR. JUSTICE UMA SHANKER VYAS
Order
07/12/2021
D.B.Civil Misc. Application No.01/2021:-
The petitioner seeks to amend the petition by adding certain
averments and grounds to the existing petition and for such
purpose this application is filed. This application is allowed.
Petitioner has already produced the copy of the amended
writ petition which shall be taken on record. The respondent is
granted four weeks' time to file a reply to the amended portion of
the writ petition.
D.B. Civil Misc. Application No.39695/2019:-
This application is filed by the respondents seeking vacation
of the interim order passed by this Court on 11.09.2018. The
petitioner has challenged the constitutionality of Rule 5A(2) of the
(2 of 3) [CW-20642/2018]
Service Tax Rules, 1994 to the extent it authorizes the officers of
the Service Tax Department, the audit party deputed by a
commissioner or the CAG to seek production of documents
mentioned therein. Consequently the petitioner has also
challenged a notice dated 16.08.2018 issued by the Assistant
Commissioner of Central Goods and Service Tax asking the
petitioner to produce information and documents mentioned
therein.
In the petition the petitioner heavily relies on the decisions of
the Delhi High Court in case of Travelite (India) Vs. Union of
India -2014 (35) STR 653 and also of Delhi High Court in case
of Mega Cabs Pvt. Ltd. Vs. Union of India and Ors. -(2016)
43 STR 67 in support of the challenge to the vires of the Rule.
The respondents would point out that these decisions of Delhi High
Court have been stayed by the Supreme Court. The petitioner
therefore without disclosing true facts obtained an ex-parte
interim order from the Court. It was strongly argued that the
interim order should be vacated. Even otherwise, the contention of
the counsel for the respondents was that this Court would not stay
the operation of the statutory rule. The notice which has been
issued in exercise of powers under Rule 5A(2) cannot be stayed.
Counsel for the petitioner submitted that various High Courts
across the country in the process of examining challenge to the
vires of the said rule have granted interim protection against
operation of the said rule. The interim order granted earlier
therefore be confirmed.
We notice that Delhi High Court in case of Travelite (India)
(supra) had struck down the validity of Rule 5A(2) which led to
(3 of 3) [CW-20642/2018]
certain amendments in the statute and reframing of the Rule 5A.
This amended rule was also challenged before the Delhi High
Court in case of Mega Cabs Pvt. Ltd. (supra) and to the extent
it authorizes the officers of the Service Tax Department, audit
party deputed by a Commissioner or CAG to seek production of
the documents was held to be ultra vires to the Finance Act, 1994.
It is true that the operation of both these judgments have been
stayed by the Supreme Court. Nevertheless various High Courts
across the country are in the process of independently examining
the vires of the Rule and pending such exercise interim protection
has been granted. This Court is also seized of the matter and in
this petition before this Court vires of Rule 5A(2) has been
challenged. The interim order was passed on 11.09.2018 by
staying the impugned notice. It is true that the factum of stay of
the operation of decision of Delhi High Court in case of Mega
Cabs Pvt. Ltd. (supra) was not disclosed. However only for such
reason we do not think that the interim protection should be
vacated. Quite apart from the decision of the Delhi High Court, we
are keenly interested in testing the vires of the Rule. Under the
circumstances, request for vacating the interim relief is refused.
Application stands disposed of.
Petition may be kept for hearing on 18.02.2022.
(UMA SHANKER VYAS),J (AKIL KURESHI),CJ
N.Gandhi /FR Bohra/30
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