2010 (11) TMI 469 - AT - Service Tax

Demand - time-barred - whether the sub-contractor who provided service to the main contractor shall be exempted from levy of service tax - No evidence was before us to notice whether the service provided by the sub-contractor to the contractor was ever been taxed - there was non-compliance to the law by the sub-contractor-appellant. When we found that the appellant is made liable under Finance Act, 1994 and has paid taxes, cum-tax benefit cannot be denied Held that appellant shall appear before learned Adjudicating Authority and satisfy him that the gross value of service giving rise to tax demand of Rs. 61,44,148/-have been included in the gross value covered by appeal No. ST/92 of 2008 so that there shall not be over lapping of demand - Appeal is disposed of

Summary

Issues:
1. Whether a sub-contractor providing service to a main contractor is exempt from service tax.
2. Applicability of penalty under Sections 76, 77, and 78 of the Finance Act, 1994.
3. Availability of cum-tax benefit and Cenvat credit to the sub-contractor.
4. Justification for invoking the extended period for adjudication.

Analysis:
1. The main issue in this case was whether a sub-contractor providing services to a main contractor is exempt from the levy of service tax. The appellant, being a sub-contractor, did not seek registration or file returns for the period in question, resulting in a demand for service tax, penalty, and interest. The appellant argued that they believed the service provided was not taxable under the Finance Act, 1994, as the main contractor paid service tax. However, the Tribunal held that there was no provision to grant immunity to the sub-contractor from service tax when taxable services were provided, citing a Larger Bench decision. The Tribunal concluded that the appellant was liable to service tax for the services provided.

2. The Tribunal considered the penalties imposed under Sections 76, 77, and 78 of the Finance Act, 1994. It was noted that the appellant's non-compliance with the law led to the tax liability and penalties. The Tribunal held that there would be no concession in penalties due to the lack of registration and non-filing of returns. However, the Tribunal emphasized that the appellant was liable to service tax as per the charging section of the law.

3. Regarding the cum-tax benefit and Cenvat credit, the Tribunal held that if the appellant had paid taxes and there was compliance with the law, these benefits should not be denied. The Tribunal emphasized that the entitlement to Cenvat credit and cum-tax benefit would be subject to scrutiny by the Adjudicating Authority. The Tribunal remanded the matter back to the Authority to re-examine the entitlement aspects and re-compute the tax liability.

4. The Tribunal justified the invocation of the extended period for adjudication due to the appellant's non-compliance with the law. It held that the proceedings were not time-barred, and there would be no concession in penalty. The Tribunal concluded by outlining the appellant's liabilities for service tax, cum-tax benefit, Cenvat credit, and penalties as warranted by the law.

In conclusion, the Tribunal upheld the liability of the sub-contractor for service tax, allowed for the cum-tax benefit and Cenvat credit subject to scrutiny, and justified the penalties imposed under the relevant provisions of the Finance Act, 1994. The matter was remanded back to the Adjudicating Authority for further examination and re-computation of the tax liability.