2012 (8) TMI 315 - AT - Service Tax

Service Tax liability under the category of Construction services - Held that - Considering submission by the main contractor that they are in receipt of contract from third party out of which they will be sub-contracting some of the work to the appellant herein and is discharging entire Service Tax liability on the entire amount of contracts - thus tax liability cannot be fastened on the appellant - in favour of assessee.

Summary

Issues:
Waiver of pre-deposit of Service Tax liability under Construction services category.

Analysis:
The Stay Petition was filed seeking waiver of pre-deposit of the Service Tax amounts confirmed by the adjudicating authority. The appellant had not discharged the Service Tax liability under the Construction services category. After hearing both parties, the Tribunal found the issue to be narrow. The application for waiver of pre-deposit was allowed, and the appeal itself was taken up for disposal.

The appellant's counsel referred to a letter from the main contractor, M/s Siemens (India) Ltd., which indicated that they would be sub-contracting some work to the appellant. The letter stated that M/s Siemens would discharge the entire Service Tax liability on the contracts. The appellant claimed that a part of the first contract was sub-contracted to them, but they could not provide evidence of Service Tax discharge by M/s Siemens. The Department's representative argued that without evidence, the adjudicating authority's conclusion was correct.

Upon considering the submissions, the Tribunal noted that if the Service Tax liability on the entire contract with M/s Siemens was discharged, the appellant could not be held liable for further tax. The Tribunal decided that the adjudicating authority needed to examine this aspect in detail based on the evidence presented for the first time. Therefore, without expressing any opinion on the case's merits, the matter was remanded to the original adjudicating authority for a fresh consideration, allowing the appellant to produce any additional evidence.

Consequently, the appeal was allowed for remand to the adjudicating authority, with instructions to issue a new order following the principles of natural justice.