Page 68 - GSTL_18th June 2020_Vol 37_Part 3

282 GST LAW TIMES [ Vol. 37
No. 9/2005-S.T., dated 3-3-2005 and Taxation of Services (Provided from Outside
India And Received in India) Rules, 2006 introduced by Notification No.
11/2006-S.T., dated 19-4-2006. Thus, the petitioner cannot state that neither a no-
tice nor an order of determination had been issued to the petitioner in respect of
any period on any issue prior to the Scheme.
23. The amendment in the Finance Act, 2012 did not introduce service
tax on “intermediary or insurance intermediary” service for the first time. It was
liable to tax all along in terms of Section 65(105)(zl) of the Finance Act, 1994 w.e.f.
1-5-2006 prior to that the service.
24. In fact, the case of the petitioner that it was exempt from payment
of tax in terms of Export of Services Rules, 2005 was rejected by the Tribunal vide
Final Order No. 1278/2008, dated 17-11-2008 and by Commissioner of Central
Excise vide Order-in-Original No. 19/2010, dated 3-11-2010. Thus, for the earlier
period also, the petitioner has been held liable to pay tax for up for the normal
period of limitation.
25. Thus, mere change in the provisions in the Finance Act, 1994 vide
Finance Act, 2013 did not alter the nature of levy of Service Tax on the services
provided by the petitioner. Even according to the Department, the petitioner was
not exempted from payment of service tax under the provisions of the Export of
Services Rules, 2005. For the period after 7-7-2012, Rule 9(c) of the Place of Provi-
sional [of Services] Rules, 2012 specifically continued the levy on services pro-
vided by the petitioner. The issue is the same issue in respect of which it has been
issued with Show Cause Notice.
26. Therefore, I am of the view, it is not open for the petitioner to con-
tend that it was entitled to avail the benefit of the Scheme in the light of 2nd pro-
viso to Section 106 of the Finance Act, 2013. Further, the scheme under the Fi-
nance Act, 2013 is not available to an assessee who has filed returns under Sec-
tion 70 of the Finance Act, 1994, but had failed to pay tax.
27. It is evident that a person like the petitioner were not in the con-
templation of the Service Tax Voluntary Compliance Encouragement Scheme,
2013. Since the petitioner was not eligible to the aforesaid scheme, the denial of
the benefit of aforesaid scheme in the light of the clarification of the Central
Board of Excise and Customs, New Delhi vide clarification dated 13-5-2013 bear-
ing reference Circular No. 169/4/2013-S.T. is not relevant.
28. Thus, it is clear that the Service Tax Voluntary Compliance Scheme,
2013, is not intended for a person like the petitioner.
29. The decision of the Gujarat High Court in Sadguru Construction Co.
v. Union of India, (2015) 81 VST 95 (Guj) = 2014 (36) S.T.R. 3 (Guj.) referred by the
Learned Counsel for the petitioner, did not deal with the situation contemplated
under Section 106(1) and 2nd proviso to Section 106(1) of the Finance Act, 2013.
The said decision has merely dealt with the situation, where, the petitioner there-
in like the petitioner herein had paid the amount before the Finance Act, 2013
came to be passed. Therefore, I am of the view that the said decision is also of no
relevance to the case of the petitioner. In case the petitioner was entitled to avail
the benefit of the aforesaid scheme, the said decision would have come to rescue
of the petitioner.
30. The decision of the Uttarakhand High Court in Uttarakhand Van Vi-
kas Nigam v. Union of India and Others, (2015) 81 VST 106 (Uttarakhand) followed
the decision of the Gujarat High Court in Sadguru Construction Co. v. Union of

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