2012 (12) TMI 138 - AT - Service Tax

Demand of service tax from the main service provider and subcontractor - double taxation on same service - Held that - Same service for which the contractor has procured an order, does not stand actually provided by him but is passed on to sub-contractor, who provided the actual service, it cannot be said that the contractor is liable to pay duty on the same. Service definitely stands provided only once. As such by no stretch of imagination service tax in respect of the same service can be paid for the second time. It Is not a case where the service provided by sub-contractor is further used by him for providing services to his buyers. As such, the example of inputs being used in the final product and both leviable to excise duty is not apt - issue remanded back to the adjudicating authority in respect of the contract which has been awarded by M/s. Reliance Industries to M/s. Viral Builders - appeal has to be allowed by way of remand to the adjudicating authority to reconsider the issue afresh along with the issue of M/s. Viral Builders to reconsider the issue after following the principles of natural justice - appeal is allowed by way of remand.

Summary

Issues:
Waiver of pre-deposit of service tax, liability of sub-contractor for service tax payment, remand to adjudicating authority for reconsideration.

Analysis:
The stay petition in this case sought the waiver of pre-deposit of service tax amounting to Rs. 1,28,02,156 along with interest and penalties imposed under the Finance Act, 1994. The amounts in question were confirmed by the adjudicating authority based on the appellant's alleged liability to pay service tax on free materials received from M/s. Reliance Industries as a sub-contractor to the main contractor M/s. Viral Builders. The appellant contended that as a sub-contractor, they were not required to discharge any service tax liability since M/s. Viral Builders had already paid the service tax on the entire contract awarded to them by M/s. Reliance Industries. The appellant relied on a previous judgment of the Tribunal which held that service tax liability for services rendered should be discharged at one point and cannot be paid by two different persons for the same contract.

The opposing argument put forth by the SDR was that there was no evidence on record to establish that the contract between Viral Builders and the sub-contractor (appellant) was the same, and that Viral Builders had paid the service tax liability for the entire contract. After considering the submissions, the Tribunal found that the issue at hand was similar to the one addressed in the previous judgment involving Viral Builders. Consequently, the Tribunal remanded the matter back to the adjudicating authority for reconsideration, emphasizing that the service tax for the same service should not be paid twice, as the service is provided only once. The Tribunal acknowledged the similarity between the issues in this case and the one involving M/s. Viral Builders, and decided to allow the appeal by way of remand to the adjudicating authority for a fresh assessment while ensuring the principles of natural justice are followed.

Therefore, the Tribunal allowed the appeal by way of remand, setting aside the impugned order and directing the adjudicating authority to reexamine the matter without expressing any opinion on the merits of the case, keeping all issues open for reconsideration.