DEBANGSU BASAK,J. - (1.) A Notice dated September 3, 2018 issued by the respondent no.4 is under challenge in the present writ petition on the ground that, they were issued without jurisdiction.
(2.) Learned Advocate appearing for the petitioner submits that, the Central Goods and Services Tax Act, 2017 repeals Chapter V of the Finance Act, 1994. By the impugned notice, the authorities are proposing to conduct an audit under the provisions of the Chapter V of the Finance Act, 1994. He refers to Sections 173 and 174 of the Act of 2017 and submits that, the provisions of Chapter V of the Finance Act, 1994 stands omitted. An audit contemplated under Chapter V of the Finance Act, 1994 is not saved by the provisions of Section 174 of the Act of 2017. He relies upon 2018 (17) G.S.T.L. 21 (Cal.) ( Infinity BNKE Infocity Pvt. Ltd. Versus Union of India) and submits that, in similar circumstances, the Court was pleased to grant an order of stay. He refers to 2018 (19) G.S.T.L. 27 (Guj.) ( OWS Warehouse Services LLP Versus Union of India) and submits that, the Gujurat High Court also granted stay in respect of proceedings under Rule 5A of the Service Tax Rules, 1994. Learned Advocate appearing for the respondents submits that, the final orders of this Court relating to challenge under Rule 5A of the Service Tax Rules, 1994 were set aside by the Hon'ble Division Bench. He relies upon the judgment and order dated December 6, 2018 passed in MAT No.914 of 2018 with CAN 6339 of 2018 (Union of India and Ors. Versus Infinity Infotech Parks Ltd. and Anr.) as well as MAT No.915 of 2018 with CAN 6338 of 2018 (Union of India and Ors. Versus Magnacon Electrical (India) Ltd.) and submits that, the matters have since been remanded for fresh consideration. He submits that, in view of Infinity Infotech Parks Ltd. (supra) and Magnacon Electrical (India) Ltd. (supra), the Court should not grant any interim relief. Learned Advocate appearing for the petitioner submits in reply that, the provisions of Rule 5A of the Service Tax Rules, 1994 are not under challenge in the present writ petition. The present writ petition is founded upon the lack of jurisdiction of the authorities in proposing to undertake an audit under the Service Tax Act, 1994. Sub-Rule 2 of Rule 5 of the Service Tax Rules, 1994 were challenged in various writ petitions before this Court. Two of the writ petitions being Infinity Infotech Parks Ltd. (supra) and Magnacon Electrical (India) Ltd. (supra) were disposed of by the Single Judge. Appeals carried therefrom were disposed of by the judgment and order dated December 6, 2018. By such judgment and order, the Appeal Court set aside the judgment and order passed by the Single Judge and remanded the matter for fresh consideration. All points raised in the writ petition have been kept open for decision.
(3.) Infinity BNKE Infocity Pvt. Ltd. (supra) and OWS Warehouse Services LLP (supra) are interim orders. Infinity BNKE Infocity Pvt. Ltd. (supra) was rendered by this Court without the benefit of Infinity Infotech Parks Ltd. (supra) and Magnacon Electrical (India) Ltd. (supra). Moreover, in Infinity BNKE Infocity Pvt. Ltd. (supra), the petitioner therein sought a declaration that Sub-Rule 2 of Rule 5A of Service Tax Rules, 1994 was arbitrary and in conflict with the provisions of Section 72 A of the Finance Act, 1994. Such challenge is not there in the present writ petition. It appears from OWS Warehouse Services LLP (supra), the provisions of such Rule 5A of the Service Tax Rules, 1994 as amended were under challenge therein also. In any event the same is an interim order without the writ petition being disposed of finally. ;