- (1.) The petitioner is a partnership firm and contends that it is registered under Section 69 of the Finance Act, 1994 by which Service Tax became payable on certain taxable services. Respondent No.1, namely, the Officer Incharge of the Magh Mela at Allahabad issued a tender for the year 2004-05 inviting tenders from various Pandals and Shamiyana contractors for supply of various items as specified in the tender notice, such as tents, etc. The tender submitted by the petitioner was accepted by the Mela Officer Incharge. An agreement for supply of tents on hire purchase basis was executed. Clause 11 of the agreement specified that Trade Tax and Service Tax would be payable by the Officer Incharge, Magh Mela. The petitioner contends that based on the agreement, the petitioner supplied the necessary tents and thereafter raised three bills amounting to Rs.97,39,351.50, which included Trade Tax @ 5% and Service Tax @ Rs.10.2%. The Mela Officer made the payment of the bills minus Service Tax which amounted to Rs.8,62,338.34. The petitioner thereafter made a representation requesting the Magh Mela Officer to pay the Service Tax so that the petitioner could in turn deposit the same to the Central Excise Department, respondent No.2. The Mela Officer intimated the petitioner that they have sought opinion from the District Government Counsel, who has opined that the Mela Officer was not liable to pay the Service Tax inasmuch as Pandal or Shamiyana services provided by the petitioner was for pure religious ceremonies or congregation, which was held in the Allahabad Magh Mela area. The petitioner, being aggrieved by the non-payment of the Service Tax, has filed the present writ petition for the quashing the letter dated 20.3.2005, by which the Mela Officer has declined to make the payment of Service Tax and for a writ of mandamus commanding the Mela Officer to make the payment of Service Tax along with interest and penalty.
(2.) The Mela Officer has filed a counter affidavit contending that in view of the circular dated 17.9.2004 Service Tax is not payable to the Pandal or Shamiyana service providers for religious purposes and, consequently, Service Tax was not payable on the bills raised by the petitioner.
(3.) The Central Excise Department has also filed a counter affidavit contending that the petitioner is a "Mandap keeper" and, accordingly, Service Tax is liable to be paid by him. The petitioner has filed a supplementary affidavit indicating that it has received a notice of demand dated 7.4.2006 issued by respondent No.2, i.e., the Central Excise Department, by which the petitioner has been directed to pay the Service Tax, interest and penalty on the bills raised by it to the Mela Officer.;