IN THE HIGH COURT OF KERALA AT ERNAKULAM Tax Laws WWW.TAXSCAN.IN - Simplifying PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE MONDAY, THE 31ST DAY OF OCTOBER 2016/9TH KARTHIKA, 1938 WP(C).No. 19277 of 2013 (H) ---------------------------PETITIONER(S): ------------1. KERALA CLASSIFIED HOTELS AND RESORTS ASSOCIATION, (REG.NO.T-1832/2009),TC NO.25/3592(2), NERRAZHI LANE, PULIMOODU P.O., THIRUVANANTHAPUAM-695 004, REPRESENTED BY ITS SECRETARY V.KRISHNAKUMAR & PRESIDENT G.SUBODHAN. 2. HOTEL KARITHIKA INTERNATIONAL, VIZHINJAM, THIRUVANANTHAPUAM-695 521, REPRESENTED BY ITS PROPRIETOR, SURENDRADAS B. 3. THE VIJAYA CASTLE, SASTHAMKOTTA, KOLLAM-690 521, REPRESENTED BY ITS PROPRIETOR, N VIJAYAN PILLAI. 4. PANCHAJANYAM HOSPITALITIES, THE ESQAURE INN, CHARUMOOD, ALAPPUZHA DISTRICT-690 505, REPRESENTED BY ITS PROPRIETOR K.V.RAJAPPAN PILLAI. 5. M/S.R.C.PARK, OPPOSITE TOWN HALL, KUNNAMKULAM, THRISSUR DISTRICT-680 503, REPRESENTED BY ITS MANAGING PARTNER K.K.RADHAKRISHNAN. BY ADV. SRI.S.ARUN RAJ RESPONDENT(S): -------------1. UNION OF INDIA, NEW DELHI, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INAIDA, FINANCE DEPARTMENT, NEW DELHI-110 001. 2. CENTRAL BOARD OF EXCISE AND CUSTOMS AND SERIVES DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, GOVERNMENT OF INDIA, NEW DELHOI-110 001. 3. CHIEF COMMISSIONER OF CENTRAL EXCISE, CUSTOMS AND CENTRAL TAXES KERALA ZONE, C.R.BUILDING, I S PRESS ROAD, COCHIN-682 018. 4. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETRIAT, THIRUVANANTHAPUAM-695 001. R1 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R2 & R3 BY ADV. SRI.RAMAVARMA REGHUNATHAN THAMBURAN, SR.SC SRI.JOHN VARGHESE, SC R4 BY GOVERNMENT PLEADER SMT.M.M.JASMIN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: msv/

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WP(C).No. 19277 of 2013 (H) ---------------------------APPENDIX PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1.TRUE COPY OF THE NOTIFICATION NO.25/2012 SERVICE TAX DATED 20/06/2012 ISSUED FROM THE OFFICE OF MINISTRY OF FINANCE (DEPARTMENT OF REVENUE),GOVERNMENT OF INDIA. EXHIBIT P2.TRUE COPY OF THE NOTIFICATION NO.3/2013 ST DATED 1/3/2013 ISSUED FROM THE OFFICE OF MINISTRY OF FINANCE (DEPARTMENT OF REVENUE),GOVERNMENT OF INDIA. EXHIBIT P3.TRUE COPY OF THE JUDGMENT DATED 3/7/2013 PASSED BY THE HONOURABLE HIGH COURT OF KERALA IN WPC NO.14045/2011. RESPONDENT(S)' EXHIBITS: -----------------------NIL //TRUE COPY// P.S.TO JUDGE Msv/

WWW.TAXSCAN.IN - Simplifying Tax Laws A.M.SHAFFIQUE, J ************ W.P.C.No.19277 of 2013 ---------------------------------------Dated this the 31st day of October 2016 JUDGMENT This writ petition is filed seeking the following reliefs: “a) any

to issue a writ of declaration or

other

appropriate

writ,

order

or

direction declaring that Section 66E(i) r.w.s. 65B (22) and section 65 B(44) as inserted by the Finance Act 2012 by the amendment made to the Chapter V of the Finance Act, 1994 to the extent the said provisions declares

the

service

provided

by

the

restaurant, eating joints or mess, in relation to serving of food and beverages (whether or not intoxicating) having Air Conditioning or Central Air heating in any part of the establishment

at

any

time

during

the

financial year; as 'Declared Service' under section 66E r.w.s 65B(22) and accordingly bringing under the definition of “Service” under section 65B(44) for the purpose of charging to service tax under section 66B of the Act' is illegal, ultravires, beyond the legislative competence of the parliament and unenforceable and liable to be struck

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down as unconstitutional, null and void and of no effect; b) any

to issue a writ of declaration or

other

appropriate

writ,

order

or

direction declaring that Notification No:3 of 2013 dated 1-3-2013 and Notification No: 25 of 2012 dated 20-6-2012 (Sl.No.19) issued from the office of Ministry of Finance (Department of Revenue), Government of India read along with sections 66E(i), 65B (22) and 65 B (44) of the Finance Act, 1994 as amended by the Finance Act 2012; to the extend it seeks to levy service tax on the service provided by the restaurant, eating joints or mess, in relation to serving of food and beverages (whether or not intoxicating) having Air Conditioning or Central Air heating in any part of the establishment

at

any

time

during

the

financial year is illegal, ultravires, beyond the

legislative

competence

of

the

parliament and unenforceable and liable to be struck down as unconstitutional, null and void and of no effect; c) any

to issue a writ of prohibition or

other

appropriate

writ

or

order

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prohibiting the respondents from enforcing sections 66B, 66E(i) r.w.s. 65B (22) and Section 65 B (44) as inserted by the Finance Act 2012 by the amendment made to the Chapter V of the Finance Act, 1994 and notification No.3 of 2013 dated 1st March 2013 and Notification 25 of 2012 dated 20-06-2012; to the extend the said provisions seek to levy service tax on the service provided by the restaurant, eating joints or mess, in relation to serving of food and beverages (whether or not intoxicating) having

Air

Conditioning

or

Central

Air

heating in any part of the establishment at any time during the financial year.”

2.

The short facts involved in the writ petition would

disclose that in the Finance Act, 2012 relating to levy and collection of service tax, a provision has been incorporated by which service provided by restaurant, eating joints or mess, in relation to serving of food and beverages (whether or not intoxicating) having Air Conditioning facility is part of service as defined under Section 65B(44) of the Finance Act, 1994 for the

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purpose of charging service tax.

Petitioner is an association of

Hotels and a few Hotels have approached this Court. 3.

Counter

affidavit

has

been

filed

on

behalf

of

respondents 1 to 3 supporting the stand taken in the statement. It is, inter alia contended that service tax is levied under the residual power of taxation in the Centre in terms of Entry 97 of List I., legislative competence of which has been upheld in various judgments of the Apex Court. Further, reliance is also placed on the judgment of the Apex Court in Assn. of Leasing & Financial

Service Companies v. Union of India [2011(2)SCC

352] and also BSNL v. Union of India [(2006) 3 SCC 1] in order to contend that even if there is overlapping, when the transaction involves two or more taxable events in its different aspects, but overlapping does not detract from distinctiveness of aspects and therefore the imposition of service tax is well within the boundaries of legislative competence of the Central Government. 4.

On the other hand, learned counsel for the petitioner

placed reliance on the judgment of this Court in Kerala Classified Hotels and Resorts Association v. Union of India [2013(4) KLT S.N 13 (C.No.11)]. This Court had placed reliance on

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the

judgment of the Constitution Bench in K.Damodarasamy

Naidu & Bros. v. State of Tamil Nadu and others [(2000) 1 SCC 521] and had passed the following judgment: “i)

It is declared that sub Clauses

(zzzzv) and (zzzzw) to Clause 105 of Section 65 of the Finance Act 1994 as amended by the

Finance

Act

2011

is

beyond

the

legislative competence of the Parliament as the sub Clauses are covered by Entry 54 and Entry 62 respectively of List II of the Seventh Schedule. ii)

That if any payments have been

made by the petitioners on the basis of the impugned clauses, they are entitled to seek refund of the same.” 5.

That was a case relating to charge of service tax on air

conditioned restaurants where they were vending liquors and has licence to serve liquor. Since this case also stands in the same footing, I am of the view that the judgment in Kerala Classified Hotels (supra) applies to the fact situation of the present case also.

The judgment in Kerala Classified Hotels (supra) has

been upheld by the Division Bench of this Court in Union of India

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v. Kerala Classified Hotels and Resorts Association [2014 (4) KLT S.N.68 (C.No.85)]. It is submitted by the learned counsel for the respondent that the matter is pending before the Supreme Court.

Further, no stay has been granted in the matter.

Therefore, right now, I am inclined to follow the law laid down by this Court and accordingly, this writ petition is allowed.

The

declaration sought for is granted and service tax already collected shall be refunded to the respective parties.

(sd/-) (A.M.SHAFFIQUE, JUDGE) jsr