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2013 (5) TMI 697 - AT - Service TaxServices of cargo handling - service tax demand - appellant took a categorical stand that they are providing different category of manpower to M/s AAI, for doing the job of loading, unloading packing, unpacking etc. under the supervision and control of M/s AAI - They also contested the demand on the point of limitation - Adjudicating Authority did not impose any penalty - Held that - As decided in OIKOS vs. CCE, Bangalore III 2006 (10) TMI 379 - CESTAT BANGALORE taking note of Board s Circular dated 7/10/98 as also Delhi Commissionerate Trade Notice No. 53/CE (ST)/97 dated 4/9/97 held that as the main service provider has discharged the duty liability, no separate service tax can be confirmed against the sub-contractor. Also see Viral Builders vs. CCE, Surat (2010 (11) TMI 312 - CESTAT, AHMEDABAD),Newton Engg. & Chemicals vs. CCE, (2007 (8) TMI 293 - CESTAT AHMEDABAD) and Vijay Sharma & Co. vs. CCE, Chandigarh(2010 (4) TMI 570 - CESTAT, NEW DELHI) By applying the ratio of the above decisions to the facts of the present case, it is found that in as much as the payment of service tax on the full cargo handling service does not stand disputed by the Adjudicating Authority, second time confirmation of service tax on that part of the services, which stands further delegated to the appellant, cannot be upheld. There are certificates given by M/s AAI indicating that they have paid service tax on the full considerations and the job contract given to the appellant is in the nature of sub-contractor at a lump-sum rate - thus set aside the confirmation of demand of duty - Revenue s appeal for imposition of penalty on the assessee does not survive. In favour of assessee.
Issues Involved:
1. Confirmation of service tax and interest against the assessee. 2. Dropping of penalty by invoking Section 80 of the Finance Act, 1994. 3. Dispute regarding whether the appellant provided cargo handling services or not. 4. Liability of the appellant to pay service tax for services rendered to M/s AAI. 5. Applicability of longer period of limitation. 6. Interpretation of Circulars and trade notices by the Commissionerate. 7. Application of previous Tribunal decisions to the present case. 8. Dispute resolution regarding payment of service tax by M/s AAI and the appellant's liability. Detailed Analysis: 1. The judgment involved the confirmation of service tax and interest against the assessee, arising from an agreement with M/s Airport Authority of India for cargo handling services at Delhi International Airport. The Commissioner confirmed the service tax liability, leading to the appellant's appeal. 2. The Revenue's appeal was against the dropping of penalty under Section 80 of the Finance Act, 1994. The Adjudicating Authority did not impose a penalty on the appellant, considering that M/s AAI had already paid the entire tax liability on the services provided. 3. The key dispute revolved around whether the appellant provided cargo handling services or merely supplied manpower to M/s AAI for various operations. The appellant contended that they were not providing taxable cargo handling services but supplying manpower, which was not taxable before a certain date. 4. The Adjudicating Authority rejected the appellant's argument, considering them as independent providers of cargo handling services to M/s AAI. The Authority upheld the liability of the appellant to pay service tax, despite M/s AAI already discharging the tax on the full consideration received from other airlines. 5. The Adjudicating Authority invoked a longer period of limitation due to the alleged non-disclosure of complete facts by the appellant. However, no penalty was imposed on the appellant as the tax had been paid by M/s AAI, and the appellant subsequently registered and started paying service tax. 6. The judgment interpreted Circulars and trade notices by the Commissionerate, emphasizing that where the principal service provider discharged the tax liability on the entire service value, a separate liability could not be imposed on the subcontractor. 7. The Tribunal referred to previous decisions, such as OIKOS vs. CCE, Bangalore III, Viral Builders vs. CCE, Surat, and others, to support the principle that service tax should not be payable twice for the same service when the main contractor has already paid the tax. 8. Ultimately, the Tribunal set aside the confirmation of the service tax demand against the appellant, considering M/s AAI's payment of full service tax and the nature of the job contract as that of a sub-contractor at a lump-sum rate. The Revenue's appeal for penalty imposition was rejected as a result of the decision in favor of the appellant.
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