Deepak Gupta, J. - (1.) The present petition has been filed against the notice dated November 5, 2009 which reads as follows: "Office of the Deputy Commissioner,Central Excise and Service Tax Division,Joy Nagar Middle Road, Agartala 799 001.Phone: 2324101, 2304099 Fax: 2329291 C. No. V(30)5/ST/RV/REA/AGT(R)/2009/ Dated: To: Shri Subhas Chandra Dutta,Ramnagar Road No. 4, Cross Road No. 2,(Opposite Bani Vidyapith School)P/O: Ramnagar,Agartala, Tripura West. Dear Sir, Sub: Payment of service tax on commercial or industrial construction service It is on record that you have provided taxable service in the category of commercial or industrial construction service under sub -clause (zzd) of Sec. 65(105) Chapter the Finance Act, 1994 (as amended) to Rose Valley Real Estate & Construction Ltd., 3 M.B. Road, Near Old RMS Chowmuhani, Agartala, in connection with execution of civil works for Water Park and Erection Commissioning of Rides, in the Rose Valley Park at Madhuban, Amtali, Tripura West District and received an amount of Rs. 3,16,56,365 (rupees three crores sixteen lakhs fifty -six thousand three hundred and sixty -five only) from Rose Valley Real Estate & Construction Ltd., being cost of execution of such commercial or industrial construction service and erection commissioning and installation service which is taxable as per Sec. 68 read with Sec. 66 of the Chapter V of the Finance Act, 1994. On scrutiny of this office records it appears that you have neither obtained service tax registration nor paid service tax for the above commercial construction which is a gross violation of the provisions of the Finance Act, 1994 as well as the Service Tax Rules, 1994. You are therefore requested to deposit service tax amounting Rs. 12,53,592 (twelve lakhs fifty -three thousand five hundred and ninety -two only) education cess Rs. 25,072 (twenty -five thousand and seventy -two only) and secondary and higher education cess Rs. 12,536 (twelve thousand five hundred thirty -six only) along with accrued interest at 13 per cent per annum on the above amount with effect from the date of actual receipt of the value of above taxable service from the service receiver, on or before November 15, 2009 positively and inform this office the deposit particulars within seven days of receipt of this letter. You are also requested to apply immediately for service tax registration in form ST -1, as per the provision of Chapter V of the Finance Act, 1994 read with Service Tax Rules, 1994. For further please contact the undersigned or please visit our departmental website Thanking you. Yours faithfully,(Sd.) Sishir Dey.5.11.2009.Superintendent, Service Tax Range, Agartala." The contention of the petitioner is that sub -clauses (zzq) and (zzd) of clause (105) of Sec. 65 of the Finance Act have not been enforced till date and, therefore, the Superintendent, Service Tax Range has no jurisdiction or authority to issue the said notice.
(2.) At the same time, Sri Somik Deb, learned counsel for the petitioner has placed reliance on a notification dated May 22, 2007 exempting commercial or industrial construction service referred to in this very same sub -clause (zzq) in relation to certain contracts.
(3.) We are clearly of the view that first the petitioner must approach the assessing authority and get the dispute decided by the assessing authority. There is no inherent lack of jurisdiction. Whether service tax is payable or not has to be decided by the assessing authority. Such assessing authority can also decide whether the charging provision has, in fact, been enforced or not. The assessing authority can also decide whether any exemption has been made and the petitioner is exempted from payment of tax. The assessing authority like any other judicial or quasi -judicial authority also has the right to decide on its own jurisdiction. Therefore, we dispose of the petition without going into the merits of the case with a direction that the petitioner should file reply to the notice dated November 5, 2009 within three weeks from today and on such reply being filed the assessing authority shall decide the dispute after hearing the petitioner as early as possible and in any event, not later than three months after the reply is filed.;