Amirta International Institute of Hotel Management Vs Principal Commissioner of CGST & Central Excise (Madras High Court)
Madras High Court held that provisions of section 174(2) of the CGST Act states that repeal as per subsection (1) shall not affect any rights, privileges or obligations or liability acquired, accrued or incurred under the old Act.
Facts-
A common order is passed in these Writ Petitions, since the legal issue upon which a determination is sought are one and the same in all the matters. The facts in W.P.Nos.3354, 5098 of 2020 and 29286 of 2022 are similar as they relate to liability to Service tax under the Finance Act 1994 (‘in short Act’) for transfer of copyright in musical work by music composers and the exemption they seek in terms of Exemption Notification 25/2012 dated 20.06.2012.
Conclusion-
I am of the considered view that in interpreting the effect of repeal and savings clauses, one will adopt a view that ensures smooth continuity rather than one that disrupts the flow of the levy itself. In doing so, the Court must consider if the new enactment specifically militates against such the continuance.
In State of Punjab V. Mohar Singh (AIR 1955 SC 84), the Hon’ble Supreme Court held that the effect of repeals and savings must be arrived at in a wholistic fashion by deciding whether there was a contrary intention that is manifest in the new enactment to confirm that rights under the old enactment were destroyed.
Section 174(2) states that repeal as per subsection (1) shall not affect any rights, privileges or obligations or liability acquired, accrued or incurred under the old Act and the proviso carves out an exception in regard to tax exemption granted as an investment against investment through ‘Notification’. In such cases, such exemptions shall continue until rescinded. What I gather by implication, is that Notifications in other situations continue.
FULL TEXT OF THE JUDGMENT/ORDER OF MADRAS HIGH COURT
A common order is passed in these Writ Petitions, since the legal issue upon which a determination is sought are one and the same in all the matters. The facts in W.P.Nos.3354, 5098 of 2020 and 29286 of 2022 are similar as they relate to liability to Service tax under the Finance Act 1994 (‘in short Act’) for transfer of copyright in musical work by music composers and the exemption they seek in terms of Exemption Notification 25/2012 dated 20.06.2012. The facts in W.P.No.12291 of 2019 vary substantially and are detailed in the paragraphs to follow.
2. The petitioner in W.P.No. 12291 of 2019 is engaged in conducting professional and Executive Diploma courses in Hotel Management. It was in receipt of a show cause notice dated 30.08.2018 issued by the Director General of GST Intelligence (DGGI/R2) proposing to levy service tax for the period 01.01.2013 to 30.06.2017 upon the premise that the activity carried on by it amounts to service as defined under Section 65B(44) of Finance Act, 1994 (in), as amended in 2012.
3. According to the petitioner, the courses that its offers from part of a curriculum recognised by law including vocational courses covered in Group-15 to Schedule-I of the List of Designated Trades under the Apprentice Act, The allegations in the show cause notice were to the effect that the petitioner was not certified to enjoy recognition from the AICTE/UGC or any applicable authority.
4. The petitioner responded, both on the ground of maintainability as well as on the merits, the latter including the argument that the proceedings were bereft of limitation. Despite the objections raised, an order-in-original has come to be passed by the Principal Commissioner of CGST & Central Excise (R1) on 07.02.2009, rejecting the objections and confirming the proposals contained in the show cause notice.
5. The submission of Ms.Radhika Chandrasekhar, learned counsel, are as follows. Show cause notice dated 30.08.2018 was issued by the Director General of GST Intelligence proposing the levy of service tax for the period 01.01.2013 to 30.06.2017. Though the period in question is prior to the Goods and Service Tax (GST) regime, show cause notice has been issued post implementation of GST, that came into effect on and after 01.07.2017.
6. The notice proceeds on the basis that the impugned proceedings are terms of Section 174(2) of the Central Goods and Service Tax Act, 2017 (in short Act/CGST Act). The petitioner has been directed by the DGGI who has issued notice, to appear before the Principal Commissioner of Central Tax and Central Excise, North Commissionerate. Thus the argument that the authority issuinjg the show cause notice cannot direct adjudication by another authority and since the two authorities, notice issuing authority and the adjudicating authority, are different, the proceedings are vitiated.
7. The petitioner argues that the proceedings are without jurisdiction as there is no provision under which the DGGI could have drawn power to have issued the show cause notice, legitimately. The source of power emanates from Notifications issued in the era prior to GST that have not been expressly saved under the new regime. Hence, since the source of power is in itself, invalid in law, the power assumed by the DGGI falls foul of statutory mandate.
8. The delegation of the power of adjudication by one authority to another is not a situation that has been saved under Section 174 of the CGST Act, that provides for repeal and savings. Chapter-V of Finance Act, 1994 has been omitted through Section 173 of the CGST Act. With this omission Chapter-V stands obliterated from the statute book. Any acts of delegation under the omitted enactment cannot be saved by virtue of the savings clause.
9. An exemption is engrafted under Section 6 of the General Clauses Accordingly, the unconditional omission of a statute without saving clause will result in a situation where all transactions under that Act must grind to a halt commensurate with such omission coming into effect. Thus, with the omission of Chapter-V of Finance Act, 1994, all and any situations contemplated under the erstwhile chapter must stand obliterated.
10. The petitioner relies on the following judgments in support of the submissions above:
(i) M/s.Rayala Corporation (P) Ltd. v. Director of Enforcement [1969 (2) SCC 412]
(ii) Kolhapur Canesugar Works Ltd. v. Union of India [(2000) 2 SCC 536]
(iii) Air India v. Union of India and Others [(1995) 4 SCC 734]
(vi) OWS Warehouse Services LLP v. Union of India [2018 (19) G.S.T.L. 27 (Guj.)]
(v) M/s. Sulabh International Social Service Organization, (Jharkhand State Branch) v. The Union of India [WP.(T)No.1599 of 2019 dated 04.2019]
(vi) M/s. Canon India Pvt. Ltd. v. Commissioner of Customs [2021-TIOL123-SC-CUS-LB]
(vii) Shri Ishar Alloy Steels Ltd. v. JayaswalsNeco Ltd. [(2001) 3 SCC 609]
(viii) Kerala State Electricity Board v. Baiju Chandran [(2020) 4 KLT 204]
(ix) Commissioner of Cusoms v. Sayed Ali [2011 (265) E.L.T. 17 (S.C.)]
(x) Sri Balaji Rice Company v. Commercial Tax Officer [(1984) 55 STC 292W (AP)]
(xii) M/s. Thangamayil Jewellery Ltd v. The Additional Director General of GST Intelligence, Coimbatore Zonal Unit [WP(MD)No. 16271 of 2020 dated 24.02.202 1]
(xiii) M/s. Thangamayil Jewellery Ltd v. The Additional Director General of GST Intelligence, Coimbatore Zonal Unit [Rev.Aplw(MD)No.45 of 2021 dated 04.10.2021]
11. On merits, the petitioner submits that the activity of dissemination of education, as part of a curriculum for obtaining a qualification recognised by law or as part of an approved vocational course, would fall under the negative In fact, on and post 14.05.2016 the exemption that was hitherto available to the negative list came to be extended by way of Notification bearing No.25 of 2012 dated 20.06.2012.
12. The petitioner is a member of an Association of Universities, and this entitled successful students to join higher education courses in India. Thus, it is entitled to such a course being recognised by law for the time being in This submission was rejected by the respondents stating that such entitlement is not equitable, but has to flow from a satisfaction of the statutory conditions.
13. According to the petitioner, this conclusion of the authority is contrary to the decision of the Customs Excise and Service Tax Appellate Tribunal (CESTAT) in the case of ITM International Pvt. Ltd. v. Commissioner of Service Tax, Delhi [2017 (7) G.S.T.L. 448 (Tri. – Del.)].
14. The authority was also was not right in concluding that non-affiliation with either the National Skill Development Council or National Council for Vocational Training or State Council for Vocational Training was fatal to its case.
15. In fact, such affiliation is not necessary and ought not to have weighed with the respondents as, according to the petitioner, it is contrary to the law laid down in the case of Commissioner of Service Tax, Delhi v. Ashu Exports Pvt. Ltd. [2014 (34) S.T.R. 161 (Del.)] and Wigan and Leigh College (India) Limited V. Joint Commissioner, ST Hyderabad (2007 (8) STR 475 (Tri.Bang.) as well as SRM Institute of Hotel Management V. Commissioner of Central Excise (ST), Trichy (2014 (35) STR 843 (Tri.Chennai)).
16. On limitation, the petitioner would submit that the respondents were well aware of the activities of the petitioner even from the year 2014 onwards. Hence, the delay on the part of the respondents in issuing the show cause notice is fatal to their cause as the petitioner had never concealed any particulars or material in regard to the transactions that would justify the invocation of the longer period of limitation. Reliance is placed on the decision in Commissioner of Customs v. Magus Metals P. Ltd. [2017 (355) E.L.T. 323 (S.C.)].
17. The petitioner finally contended that there were several grounds raised by it that were omitted to be considered by the authority and thus the impugned order suffers from non-application of mind and relies in the regard upon a decision in the case of Banas Security & Personal Force v. Commissioner of C. Ex. & Service Tax [2015 (38) S.T.R. 933 (Guj.)]. On the he aforesaid submissions, the petitioner would urge that the impugned proceedings be quashed.
18. In W.P.No.3354 of 2020, the petitioner is a music composer of renown, composing songs and background score for films. He challenges an order-in-original dated 17.10.2019. Prior thereto, he was in receipt of show cause notice dated 21.10.2018 issued by the Additional Director General of GST (Intelligence).
19. The notice proposed levy of service tax on transfer of copyright in musical work for the period April, 2013 to June, 2017 on the assertion of the respondents that he was not the owner of the musical work composed, and hence no copyright as contemplated under Section 13(1)(a) of the Copyright Act, 1957, vested in him.
20. The notice proposed imposition of service tax under Section 66E(c) dealing with temporary transfer, or permitting the use or enjoyment of any intellectual property right. He had claimed exemption in respect of receipts from temporary transfer or permitting to the use or enjoyment of a copyright in terms of clause (15) of Notification No.25 of 2012.
21. The petitioner draws attention to Section 65B(44) of Finance Act, 1994 that defines ‘service’ and specifically excludes transfer of title in goods of by way of sale, gift or in any other manner. He would claim the benefit of under Clause (a) of the above Notification, extracted below:
‘Services provided by way of temporary transfer or permitting the use or an enjoyment of a copyright:-
(a) Covered under clause (a) of sub-section (1) of Section 13 of the Copyright Act, 1957 relating to original literary, dramatic, musical or artistic work; or
(b) of cinematograph films for exhibition in a cinema hall or cinema theatre.’
22. Section 13 of the Copyright Act, 1957 reads as follows:
13. Works in which copyright subsists.— (1) Subject to the provisions of this section and the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say,—
(a) original literary, dramatic, musical and artistic works;
(b) cinematograph films; and
(c) sound recording.
23. The petitioner reiterates that he is the sole and absolute owner of the copyright that subsists in the musical works composed by him. Being the holder of such copyright, he assigns them to the film producer under agreements that he executes with them, in terms of which the producer could exploit that copyright.
24. On the assumption of jurisdiction, petitioner adopts the arguments advanced in the case of Amrita International (supra) placing emphasis on the judgements in Canon India Pvt. Ltd., Shri Ishar Alloy Steels Ltd., Kerala State y Board., Sayed Ali and Sri Balaji Rice Company cited by that petitioner as well.
25. The petitioner in W.P.No.29286 of 2022 is also a composer of music and background score for films, and challenges an order-in-original dated 30.08.2022. Prior thereto, he had received a show cause notice dated 24.10.2018 relating to the period 2013-14 to 2016-17 and calling for various particulars in respect of the aforesaid period. Upon receipt of the documents, the DGGI framed the issues for consideration under the following broad heads:
a) Consideration received in terms of Contract of employment as Composer with Producer of Movies where he has undertaken to perform several activities pertaining to composing, writing and creating the Music and arranging and orchestrating the same together with the lyrics, selecting, securing the services of and obtaining all necessary rights releases permissions and consents from any Musicians, making such alterations to the Music as is reasonably required by the Producer, supervising the editing of the Music, undertaking the preparation of music cue sheets containing such details as are reasonably required by the Producer and advising the Producer generally at the Producer’s request on all matters relating to the Music and all such other services in relation to the film as the Producer may reasonably request and as are standard and customary for film composers in the film industry in India. All deliverables shall be composed and made in accordance with such ideas and directions deemed to be an integral part of the Film’s story narration as Producer/Director may provide to the Composer from time to time as mutually agreed. Further, in some cases he has also (as an Assignor of right purportedly vested in him in respect of Musical Works and Sound Recording) assigned the presumed right to the Assignee (Film Producers) while aining certain rights like right to live performance of such rks, right to Publishing Royalties etc.
b) Composing music for advertisement and Promotional activities for the cinematographic film for which he had composed Music.’
26. After extracting various provisions of the Service Tax Act, Rules and Copyright Act, the authority proceeds to prima facie conclude that the petitioner has imported taxable services from outside India remitting consideration and foreign exchange. He thus fastens liability on the receipts from such services under Section 68(2) of the Act read with relevant Service tax and Point of Taxation Rules as well as Notification 30/2012 ST dated 20.06.2012.
27. He thereafter proceeds to quantify the tax, penalty and interest and in doing so, invokes the extended period on the ground that there has been a suppression of facts by the petitioner. A detailed response was filed on 02.2019, wherein the petitioner has raised objections on maintainability as well as on the merits of the matter. By and large, the submissions echo those made by the other petitioners whose cases are dealt with under this order and I hence do not reproduce the same in the interests of brevity.
28. In W.P.No.5098 of 2020, the petitioner, also a composer of music and background score for films, challenges a show cause notice dated 09.04.2019 issued for the period 01.10.2013 to 30.06.2017 invoking extended period of limitation on the ground that the petitioner had suppressed various and had not remitted tax in regard to the same. As in W.P.Nos.3354 of 2020 and 29286 of 2022, reliance is placed on mega Notification 25/2012 dated 20.06.2012, specifically clause (15) thereof. In addition, learned counsel would rely on the Service Tax Education Guide in support of the submissions made.
29. The decisions of this Court in M.Suganthi V. Assistant Commissioner of Central Excise, Pollachi (2011 (23) STR 7 (Mad) and the Allahabad High Court in Nav Sahitya Prakash and ors. V. Anand Kumar and ors. (AIR 1981 All 200) are relied upon. No reply has been filed by the petitioner to the show cause notice, and he has, confident in the present challenge, filed the present Writ Petition straightaway. On the question of law, the petitioner adopts the submissions advanced as recorded in the paragraphs supra.
30. On the legal issue raised, the respondents counter the challenge to legality of the impugned proceedings (orders-in-original and show cause notice), wholly relying upon Section 174(2) of the CGST Act and Notification No.2 of 2015 dated 10.02.2015. The aforesaid Notification empowers the Board under Rule 3 of the Service Tax Rules to notify the Principal Directors General who hold jurisdiction over Executive Principal Commissioners or Commissioners of Service Tax/Central Excise for assigning show cause notices issued by the DGGI for adjudication by those Executive Principal Commissioners/Commissioners. This Notification is saved under the savings d hence there is no infirmity in the assumption of jurisdiction.
31. The judgment cited by the petitioner in Rayala Corporation Private Limited and Kolahpur Canesugar Works Limited are, according to the respondents, distinguishable. In the first instance, the Hon’ble Supreme Court considered a situation where the authority had invoked the provisions of Section 6 of the General Clause Act, 1897 (in short ‘GC Act’). The Court had opined that Section 6 is applicable only to repealed and not expired statutes.
32. In the present case, there was no necessity for the DGGI to invoke the GC Act since Chapter-V of the Finance Act, 1994 that had been omitted by virtue of Section 173 of the CGST Act, had been saved by operation of Section 174(2). As far as the judgment in Kolahpur Cane Sugar Works Limited is concerned that was a situation where a new provision had been introduced without the old provision having been saved. Such a situation does not arise in the present case as Chapter-V has been duly saved.
33. Reliance is placed on Rule 3 of the Service Tax Rules whereunder the Central Government was conferred powers on the Central Board of Excise and Customs (in short ‘Board’/’CBEC’) to issue notifications. This power has been saved and there is thus no infirmity in the present impugned proceedings as they have drawn their powers from such validly issued notification.
34. Respondents rely on the judgment in the case of Shree Bhagwatiling Mills v. Commissioner of Central Excise and another [2015 (326)ELT 209], Fibre Boards v. Commissioner of Income Tax [376 ITR 596] andState of Rajasthan v. Harnik Singh [2002 (3) SCC 481].
35. In these judgments, the Hon’ble Supreme Court has held that where statutory provisions were saved, such savings would be extended to allied rules and regulations as well. Thus, the argument of the petitioner that the rules, having not been specifically saved, the impugned proceedings are vitiated, is not tenable in law.
36. R1, the Commissioner of GST and Central Excise in W.P.No.3354 of 2020, relies upon the judgements in Laxmi Narayan Sahu and Ors. v. Union of India and Ors. [WP(C)2059, 1868/2018 and 7729/2017 dated 12.10.2018], JSK Marketing Ltd. v. Union of India [2021 (46) G.S.T.L. 369 (Bom.)] and Union of India v. JSK Marketing Ltd. [2022 (56) G.S.T.L. J10 (S.C.)]
37. Respondents in W.P.No.12291 of 2019 also rely on the decision of the Kerala High Court in Sheen Golden Jewels (I) P. Ltd. v. State Tax Officer (IB), SgstDeptt., Thiruvananthapuram [(2019) 23 GSTL 4], Karnataka High Court in Prosper Jewel Arcade LLP v. Deputy Commissioner Commercial Taxes and Others [(2018) SCC Online Kar 3887] and Delhi High Court in Vianaar Homes Private Limited v. Assistant Commissioner, Central Goods Services Tax and Others [(2020) 43 GSTL 479] and R2 in WP.No.3354 of 2020 in addition, relies upon the decision in Imagic Creative Pvt. Ltd. v. ioner of Commercial Taxes and Others [(2008) 12 VST 371 (SC)]
38. By way of response, on behalf of the petitioners, it is pointed out that there is no specific reference to ‘Notifications’ under Section 174(2) of the CGST Act and hence one cannot simply assume that all prior Notifications had been saved. A comparison is drawn in this regard to Section 88(3)(1) of the Tamil Nadu Value Added Tax Act, 2006, dealing with repeal and savings that specifically states that Rules, Regulations, Notifications, Clarifications or Orders made or issued under the provisions of the Tamil Nadu General Sales Tax Act, shall continue to be in force.
39. The decision of the Delhi High Court in Vianaar Homes is distinguished pointing out that the notice in that case was issued by the audit authority and not the DGGI. Furthermore, they argue that reference to Section 24 of the GC Act is misplaced, since there is a conscious reference only to Section 6 of the GC Act in Section 174(3) of the CGST Act.
40. The maintainability of the writ petitions is assailed by the respondents on the ground of availability of an efficacious alternative remedy. The decision of the Division Bench of Allahabad in Royal Bank of Scotland N. V. V. Commissioner of Customs and Central Excise, Noida (2014 (35) STR 68 (All.)) is cited. That case dealt with a challenge to an order of the CESTAT. In that context, the Bench held that the Writ Petition was not maintainable asthe issue regarding the rate of tax/duty in regard to a service, or whether at all ce would be liable to tax, could be decided only by the Hon’ble Supreme Court in an appeal under Section 35 L of the Central Excise Act, 1944.
41. A Division Bench of the Madras High Court has in the case of Thiruchitrambablam Projects Ltd. V. Customs, Excise and Service Tax Appellate Tribunal (2016 (43) STR 531), has decided likewise holding that, as against an order of the CESTAT, a Writ Petition would not lie and it would remain for the aggrieved party to challenge the same by way of statutory appeal. To similar effect is the decision in the case of TT Krishnamachari and Company V. Union of India (W.P.No.1276 of 2010 dated 17.11.2014).
42. The submission is that since the impugned orders-in-original dated 07.02.2019 (W.P.No.12291 of 2019), 17.10.2019 (W.P.No.3354 of 2020) and 30.08.2022 (W.P.No.29286 of 2022) and show cause notice dated 09.04.20 19 (W.P.No.5098 of 2020) touch upon the liability or otherwise to tax, it is only the appellate authority in statutory appeal who should look into the same and not the High Court.
43. In Raza Textiles Ltd. V. Income Tax Officer, Rampur ((1973) 1 SCC 633) three Judges of the Hon’ble Supreme Court opined that the maintainability of a Writ Petition would depend on whether the error committed by a quasi‑ judicial authority would amount to a decision on a jurisdictional fact. Thus, even ifthe error in question concerned one of fact, the question that would arise whether such fact constituted a jurisdictional fact, and if the answer were in the affirmative, such error would be open to examination in a Writ of Certiorari.
44. The petitioners rely upon the decisions in TVS Srichakra Ltd. v.Commissioner of CGST &C.Ex., Madurai [2018 (15) G.S.T.L. 182 (Mad.)] and Industrial Mineral Company (IMC) v. Commissioner of Customs, Tuticorin [2018 (18) G.S.T.L. 396 (Mad.) in support of the position that the existence of a statutory remedy is no bar to the Court entertaining a writ petition on a pure question of law.
45. The grounds raised are, broadly, two in nature. A common thread in all writ petitions relates to the assumption of jurisdiction by the DGGI which does constitute a pure question of law. All facts in regard to this ground are on record and admitted and in such circumstances, I see no justification in relegating the petitioners to alternate remedy in respect of this issue.
46. However, the position is different qua the other limb of the argument, that touch upon the merits of the claim of the petitioners. Detailed counters have been filed in the case of the petitioners in W.P.Nos.12291 of 2019, 3354 and 5098 of 2020. The counters, in the latter instances, elaborate on the nature of transactions that have been entered into by these petitioners in relation to composition of music, royalties and live concerts, both domestic and onal.
47. The respondents have interpreted the provisions of Section 18(1) of the Copyright Act, 1957 specifically the 3rd proviso concluding that these petitioners have not established that they are the sole and absolute owners of the copyright in the musical work. They point out that there is no prima facie evidence that has been produced by the petitioner in this regard.
48. R1, in W.P.Nos 3354, 5098 of 2020 and 29286 of 2022, relies upon the judgement of the Supreme Court in Sushilaben Indravadan Gandhi and another v. New India Assurance Company Limited and others [(2021) 7 SCC 151] touching upon the aspect of ‘control’ as an aid to differentiate between a contract of service and one for service.
49. It would not, in my opinion, appropriate to refer to the factual nature of the agreements qua these petitioners and third parties including film producers in writ proceedings. In any event, no agreements or other documents have been placed before this Court for appreciation, and rightly so. The nature of the Intellectual Property Right (IPR) vesting in the music composers, the terms inter se the composers and film producers/third parties, whether there has been an assignment of the IPR, the terms of the assignment, if at all, are all questions of fact that would have a bearing upon the intrinsic question, relating to the applicability of the Exemption Notification to these petitioners.
50. It is best that such issues be decided by the authorities who can call ant information from the petitioners for their appreciation, including the agreements. Interpretation of contractual clauses is not a matter that should concern this Court. Incidentally and moreover, the proceedings in the cases of the three music composers span the periods 2013-2017, specifically, 18.05.2013 to 28.04.2017 in W.P.No.29286 of 2022, and thus the length of the period would also entail a study of voluminous documentation that cannot be undertaken in these proceedings.
51. Though it is the persistent attempt of the petitioners to state that the liability to service tax can well be decided without reference to facts, agreements or contracts, in my considered view, that would be an utter oversimplification of the matter and even assuming so, such a determination would be purely academic. In the case of the petitioner in W.P.No.5098 of 2020, the challenge is to a show cause notice to which the petitioner has not even replied. The proceedings are, in my considered view, far too premature to be considered by this Court as even primary facts are to be established on the anvil of which the legal premise would thereafter be applied.
52. In the case of Amirta International as well, a spirited defence has been put up to the eligibility of that petitioner to the relief claimed that turn on an appreciation and assimilation of facts. The counter of the 2nd respondent dated 06.20 19 is detailed as regards the factual aspects of the matter, the courses conducted by the petitioner.
53. The respondents submit that the petitioners have entered into a Memorandum of Understanding (MOU) with the Bharat Sevak Samaj (BSS) and Foreign Universities such as the Open University of Malaysia, Sheffield Academy, Malaysia, Sheffield College, Australia, London School of Business and Finance, Singapore and Malaysian Hospitality College, Australia.
54. The petitioner offers the courses of the Foreign Universities as well as of BSS as per their curriculum. Upon completion of the courses, it issues the professional Diploma Certificate of the foreign Universities and of BSS. The petitioner is merely a conduit and passes on the Certificates/Diplomas issued by BSS and the foreign Universities. The curriculum and the conduct of examination are by BSS and the foreign Universities, respectively. The Certificates/Diplomas issued are not recognised by any law for the time being in force such as by the UGC or AICTE and thus the claim of the petitioner for exemption is misplaced.
55. Exemption requires, as a pre-requisite, for the courses conducted to be duly accredited by the statutory authorities and recognised under law. As a consequence the Universities are themselves to hold such accreditation. However the list of UGC approved universities in India as on 07.08.20 18 does dated either the foreign Universities or BSS. Hence, the conditions under mption Notification are not satisfied and the activity and receipts from the activity carried on are liable to tax.
56. The respondents also distinguish the decisions of the CESTAT upon which reliance has been placed by the petitioner as well as the decisions of the Delhi High Court in Ashu Exports Private Limited and Wigan and Leigh College (India) Limited.
57. On limitation, they point out that the petitioner had been regularly remitting tax for the period 01.04.2011 to 31.03.2012, but had stopped thereafter. This factor indicates a concerted and conscious effort by the petitioner to wriggle out of its statutory commitment. The extended period of limitation is thus well available to the respondent in such a situation. Respondents have relied upon the decision in Sahitya Mudranalaya Pvt. Ltd. v. Additional Director General [2021 (46) G.S.T.L. 245 (Guj.)], Additional Director General of GST Intelligence v. Sahitya Mudranalaya Pvt. Ltd. [2021 (48) G.S.T.L. J62 (S.C.)].
58. In this case too, I am of the view that the merits of the matter must be decided by the statutory authorities, though bearing in mind the decisions rendered by the High Courts and CESTAT on this account, as an examination of facts is inevitable on the rival positions as noticed above. All writ petitions, to the extent to the legal issue raised, are held to be maintainable. The challenge erits is left open to be agitated in appeal, subject to the decision taken in the following paragraphs on the question of assumption of jurisdiction.
59. The submissions of the respondents are dealt with in common as regards the legal issue involved. Barring W.P.No.5098 of 2020 where the challenge is to a show cause notice and wherein the Joint Director, DGGI is arrayed as sole respondent, in the other three Writ Petitions, the authorities of GST Department as well as DGGI are arrayed as respondents.
60. Counters have been filed by all respondents, barring W.P.No.29286 of 2022, wherein learned counsel for the respondents have waived the necessity for counters, proceeding instead to adopt the stand of their counterparts in the other Writ Petitions, both oral and written.
61. The issue that falls for determination is as to whether, the Notifications under which the DGGI/officials of the Intelligence Department have drawn sustenance to issue show cause notices for assessment under the Finance Act 1994, survive the transition from the erstwhile regime of taxation (Service tax) to the new regime of Goods and Service tax (GST), effective from 01.07.2017, and as a consequence, whether the assumption of jurisdiction by the DGGI for issuance of show cause notice under Finance Act 1994 read with Section 174(2) of the CGST Act, is proper in law.
62. As a prelude, levies under several revenue enactments including ax, stood subsumed into the GST regime, and Central and State Statutes were enacted from and with effect from 01.07.2017 as comprehensive codes to provide for all indirect levies under one umbrella. Finance Act 1994 levying Service tax was omitted by Section 173 of the CGST Act that states that ‘Save as provided in this Act, Chapter V of the Finance Act, 1994 (32 of 1994) shall be omitted’.
63. The GST enactments provide for sunset clauses and under the CGST Act, the relevant provision is Section 174. It is the scope and ambit of Section 174 that is under consideration in this order, in the context of Notifications issued under the repealed regime.
64. Some of the petitioners have raised an issue, albeit tentatively, in regard to the avowed distinction between ‘omission’ and ‘repeal’ and the impact of such differences on the legal issue, relying upon the judgement in Rayala Corporation. The Hon’ble Supreme Court had, therein, rendered observations in regard to Section 6-A of the General Causes Act to the effect that reference to ‘omission’ therein, was only in the context of an ‘amendment’ and not ‘repeal’.
65. These observations was interpreted to mean that Section 6-A did not apply to a repeal. This interpretation was rejected as fallacious in a later judgment of the Supreme Court in Fibre Boards (supra). The Court held that ‘repeal’ is a wide term, far wider than ‘omission’, of far larger import, and would include several situations of amendment, including ‘omission’. The observations of the Court in Rayala Corpn. were held to be obiter on this aspect.
66. The issue was raked up by the assessee yet again in the case of Shree Bhagawati Steel Rolling Mills (supra), and after hearing the counsel in detail, the submissions of the petitioner were rejected. Thus this issue is no longer res integra and the arguments of the petitioner on this score are rejected.
67. Under the erstwhile Service tax regime, the assumption of jurisdiction for the purposes of issuing show cause notices and passing orders, came to be dealt with by way of the following Notifications. Under Notification 22/2014 dated 16.09.2014, the Board has appointed officers of the Directorate General of Central Excise Intelligence and Directorate General of Service Tax, as Central Excise officers, investing them with all powers under Chapter V of Finance Act, 1994 and the rules made there under throughout the territory of India. The Notification reads thus:
GOVERNMENT OF INDIA
MINISTRY OF FINANCE
DEPARTMENT OF REVENUE
CENTRAL BOARD OF EXCISE AND CUSTOMS
NEW DELHI
NOTIFICATION NO. 22/2014-ST., Dated: September 16,
2014
“In exercise of the powers conferred by clause (b) of section 2 of the Central Excise Act, 1944 (1 of 1944), read with clause (55) of section 658 of the Finance Act, 1994 (32 of 94), rule 3 of the Central Excise Rules, 2002 and rule 3 of the Service Tax Rules, 1994 and in supercession of the notification No. 46/98-SERVICE TAX, dated the 28th January, 1998, published vide number G.S.R. 59(E), dated the 28th January, 1998 and No. 7/2004-CE, dated the 11th March, 2004, published vide number G.S.R 187(E), dated the 11th March, 2004, the Central Board of Excise and Customs hereby appoints the officers in the Directorate General of Audit, Directorate General of Central Excise Intelligence and Directorate General of Service Tax specified in column. (2) of the Table below as Central Excise Officers and invests them with all the powers under Chapter V of the Finance Act, 1994 (32 of 1994) and the rules made there under, throughout the territory of India, as are exercisable by the Central Excise Officers of the corresponding rank as specified in column (3) of the said Table, namely:-
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