Debangsu Basak, J. - (1.) The petitioner seeks a declaration that sub-rule (2) of Rule 5A of the Service Tax Rules, 1994 as substituted by Notification No. 23/24/S.T., dated December 25, 2014 is arbitrary and in conflict with provisions of Section 72A of the Finance Act, 1994. The petitioner also seeks a declaration that, the provisions of clause (k) of sub-section (2) of Section 94 of the Finance Act, 1994 is unguided and gives uncontrolled power of delegation. The third prayer is with regard to a notice, dated February 16, 2015.
(2.) Learned Advocate for the petitioner submits that, the issue of vires of similar provisions of the Finance Act, 1994 initially came up for consideration before the Delhi High Court in 2014 (35) S.T.R. 653 (Travelite (India) v. Union of India). Such provisions were to be held ultra vires. He submits that, an appeal is pending against such judgment and order of the Delhi High Court before the Hon'ble Supreme Court of India. Subsequently, the provisions as impugned in the present writ petition were introduced. The same was struck down by the Delhi High Court in 2016 (43) S.T.R. 67 (Mega Cabs Pvt. Ltd. v. Union of India). He submits that, since the provisions have been struck down, the notice impugned herein issued on such basis needs to be quashed also.
(3.) The respondent Revenue is represented. It appears that, Rule 5A was introduced by a notification dated December 28, 2007. Such notification inserting Rule 5A was challenged before the Delhi High Court in Travelite (India) (supra). Such provisions were struck down in Travelite (India) (supra). The same provisions as that involved in the present writ petition were assailed before the Delhi High Court in Mega Cabs Pvt. Ltd. (supra). Such provisions were also struck down. Appeals are pending against the judgment and order passed in Travelite (India) (supra) as well as Mega Cabs Pvt. Ltd. (supra), till such time there is a decision in the appeals, the provisions stand struck down by the Delhi High Court. Therefore, it would be iniquitous to allow the respondents to proceed on the basis of provisions struck down by a High Court, against the petitioner. The impugned notice dated February 16, 2015 is, therefore, quashed. So far as the declaration of ultra vires of sub-rule (2) of Rule 5A of the Service Tax Rules, 1994 as substituted by the notification, dated December 5, 2014 is concerned, it would be appropriate to follow Mega Cabs Pvt. Ltd. (supra). The respondents have not brought to the notice of the Court any relevant fact or law which may have weighed in the Court in taking a contrary view. In absence of such assistance, Mega Cabs Pvt. Ltd. (supra) is followed. ;