Page 90 - GSTL_18th June 2020_Vol 37_Part 3

304 GST LAW TIMES [ Vol. 37
granted by the Government of India by the aforesaid Notification No. 12/2012-
Service Tax, dated 17th March, 2012 issued by the Government of India, Ministry
of Finance (Department of Revenue) in which it is provided that in exercise of
power conferred by Section 93(1) of the Finance Act, 1994 the Central Govern-
ment exempts taxable services from the whole of the service tax leviable thereon
under Section 66B of the Finance Act which includes services provided by way of
erection, construction, maintenance, repair, alteration, renovation or restoration
of road, bridge, tunnel or terminal for road transportation for use by general
public under paragraph 13(a) of the said Notification. The petitioners have been
executing different contracts for the construction and maintenance of the roads
under the Road Construction Department and they are aggrieved by the action
of the respondent-authorities in making continuous deductions of service tax
from their bills despite the exemption notification.
5. In the counter affidavits filed on behalf of the respondents the stand
taken is that the Estimated Cost Value (ECV) for the different works was pre-
pared after including service tax at the rate of 12.36% of the total cost of work on
which the tender was floated including the service tax and in support of the
same certain materials have been brought on the record and for the said reason
the amount of service tax at the rate of 12.36% which was included in the cost of
work was being deducted from the bills of the petitioners.
6. On the other hand, Learned Counsels for the petitioners submits that
neither in the Notice Inviting Tender nor in the BOQs any mention has been
made of the inclusion of service tax at the rate of 12.36% or at any other rate.
Moreover, it is submitted that tax can only be collected under the authority of
law and in view of the aforesaid Notification it is not permissible for the re-
spondents to deduct service tax irrespective of the fact that they had included it
in their BOQs in the tender.
7. Learned Counsels for the State are unable to justify the action of the
respondents as to under what authority of law the deduction of service tax is be-
ing made by them in view of the general exemption granted by the Notification
dated 17-3-2012.
8. It is well settled that under Article 265 of the Constitution of India no
tax shall be levied or collected except by authority of law. In view of the exemp-
tion it is evident that the respondents have no authority to collect service tax
which is not at all leviable under the law.
9. In the aforesaid view of the matter, all the writ applications are al-
lowed and the concerned respondents are directed to refund the entire amount of
service tax deducted from the bills of the petitioners after the issuance of the
aforesaid Notification dated 17-3-2012. They are further restrained from collect-
ing any such tax from the bills of the petitioners or any other contractors in fu-
ture so long as the said exemption remains in operation.

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GST LAW TIMES  18th June 2020  90