Indira Banerjee, J. - (1.) THIS writ petition has been filed inter alia challenging a show cause notice No. C. No. V(15)557/Adjn./ST/D -III/Kol./09 -10/16234, dated 30th March, 2010, demanding service tax of Rs. 1,10,08,867/ - for the period from 2004 -2005. The breakup of the aforesaid claim of Rs. 1,10,08,867/ - is as follows: 1. Rendering of services to M/s. TISCO for getting coal converted to coke:
(2.) INTRA -port transportation of ores in terms of agreements with M/s. T.M. International Logistic Ltd., subsidiary of M/s. TISCO: Processing of pyroxenite for M/s. TISCO: 2. The petitioner was required to show cause why the aforesaid amounts allegedly due from the petitioners towards service tax should not be recovered along with interest as envisaged under Section 75 of the Finance Act, 1994 and why penalty should not be imposed in terms of Section 78 of the said Act. 3. Service Tax is payable under the Finance Act, 1994 as amended from time to time. After Service Tax was first introduced in 1994, amendments have from time to time been made and different kinds of services have been brought under the net of Service Tax. The Finance Act, 1994 has last been amended by the Finance Act, 2011.
(3.) SOME of the relevant provisions of the Finance Act, 1994 as amended are as follows: "65. In this Chapter, unless the context otherwise requires, (7) "assessee" means a person liable to pay the service tax and includes his agent; ...... 19) "business auxiliary service" means any service in relation to, - ...... (i) promotion or marketing or sale of goods produced or provided by or belonging to the client; or (ii) promotion or marketing of service provided by the client; or Explanation. - For the removal of doubts, it is hereby declared that for the purposes of this sub -clause, "service in relation to promotion or marketing of service provided by the client" includes any service provided in relation to promotion or marketing of games of chance, organised, conducted or promoted by the client, in whatever form or by whatever name called, whether or not conducted online, including lottery, lotto, bingo; (iii) any customer care service provided on behalf of the client; or (iv) procurement of goods or services, which are inputs for the client; or Explanation. - For the removal of doubts, it is hereby declared that for the purposes of this sub -clause, "inputs" means all goods or services intended for use by the client; (v) production or processing of goods for, or on behalf of the client; or (vi) provision of service on behalf of the client; or (vii) a service incidental or auxiliary to any activity specified in sub -clauses (i) to (vi), such as billing, issue or collection or recovery of cheques, payments, maintenance of accounts and remittance, inventory management evaluation or development of prospective customer or vendor, public relation services, management or supervision, and includes services as a commission agent, but does not include any activity that amounts to "manufacture" within the meaning of clause (f) of section 2 of the Central Excise Act, 1944 (1 of 1944). Explanation. - For the removal of doubts, it is hereby declared that for the purposes of this clause, - (a) "commission agent" means any person who acts on behalf of another person and causes sale or purchase of goods, or provision or receipt of services, for a consideration, and includes any person who, while acting on behalf of another person - (i) deals with goods or services or documents of title to such goods or services; or (ii) collects payment of sale price of such goods or services; or (iii) guarantees for collection or payment for such goods or services; or (iv) undertakes any activities relating to such sale or purchase of such goods or services; (23) "cargo handling service" means loading, unloading, packing or unpacking of cargo and includes, - (a) cargo handling services provided for freight in special containers or for non -containerised freight, services provided by a container freight terminal or any other freight terminal, for all modes of transport, and cargo handling service incidental to freight; and (b) service of packing together with transportation of cargo or goods, with or without one or more of other services like loading, unloading, unpacking, but does not include, handling of export cargo or passenger baggage or mere transportation of goods; (25) "clearing and forwarding agent" means any person who is engaged in providing any service, either directly or indirectly, connected with the clearing and forwarding operations in any manner to any other person and includes a consignment agent; (81) "port" has the meaning assigned to it in clause (q) of section 2 of the Major Port Trusts Act, 1963 (38 of 1963). (82) "port service" means any service rendered by a port or other port or any person authorised by such port or other port, in any manner, in relation to a vessel or goods; (95) "service tax" means tax leviable under the provisions of this Chapter; (105) "taxable; service" means any service provided or to be provided, - (zn) to any person, by a port or any person authorised by the port, in relation to port services, in any manner; (zr) to any person, by a cargo handling agency in relation to cargo handling services; (zzb) to a client, by any person in relation to business auxiliary service; (zzl) to any person, by other port or any person authorised by that port in relation to port services, in any manner; 65A. (1) For the purposes of this chapter, classification of taxable services shall be determined according to the terms of the sub -clauses (105) of section 65; (2) When for any reason, a taxable service is prima facie, classifiable under two or more sub -clauses of clause (105) of section 65, classification shall be effected as follows: (a) the sub -clause which provides the most specific description shall be preferred to sub -clauses providing a more general description; (b) composite services consisting of a combination of different services which cannot be classified in the manner specified in clause (a), shall be classified as if they consisted of a service which gives them their essential character, in so far as this criterion is applicable; (c) when a service cannot be classified in the manner specified in clause (a) or clause (b), it shall be classified under the sub -clause which occurs first among the sub -clauses which equally merits consideration; 66. There shall be levied a tax (hereinafter referred to as the service tax) at the rate of twelve per cent, of the value of taxable services referred to in sub -clauses.................... 68. Every person providing taxable service to any person shall pay service tax at the rate specified in section 66 in such manner and within such period as may be prescribed. (2) Notwithstanding anything contained in sub -section (1), in respect of any taxable service notified by the Central Government in the Official Gazette, the service tax thereon shall be paid by such person and in such manner as may be prescribed at the rate specified in section 66 and all the provisions of this chapter shall apply to such person as if he is the person liable for paying the service tax in relation to such service. 69. (1) Every person liable to pay the service tax under this chapter or the rules made there under shall within such time and in such manner and in such form as may be proscribed, make an application for registration to the Superintendent of Central Excise. (2) The Central Government may, by notification in the Official Gazette, specify such other person or class of persons, who shall make an application for registration within such time and in such manner and in such form as may be prescribed. 70. (1) Every person liable to pay the service tax shall himself assess the tax due on the services provided by him and shall furnish to the Superintendent of Central Excise, a return in such form and in such manner and at such frequency and with such late fee not exceeding two thousand rupees, for delayed furnishing of return, as may be prescribed. (2) The person or class of persons notified under sub -section (2) of Section 69, shall furnish to the Superintendent of Central Excise, a return in such form and in such manner and at such frequency as may be prescribed. ..... 72. If any person, liable to pay service tax, - (a) fails to furnish the return under Section 70; (b) having made a return, fails to assess the tax in accordance with the provisions of this Chapter or rules made, thereunder, the Central Excise Officer, may require the person to produce such accounts, documents or other evidence as he may deem necessary and after taking into account all the relevant material which is available or which he has gathered, shall by an order in writing, after giving the person an opportunity of being heard, make the assessment of the value of taxable service to the best of his judgment and determine the sum payable by the assessee or refundable to the assessee on the basis of such assessment.";