2014 (7) TMI 582 - HC - Service Tax

Construction services - failure to pay Service Tax when they rendered service as a sub-contractor without disclosing these facts to the department - appellant claims that service tax has been paid by the said principal and, therefore, there cannot be a double taxation for the same services. - Invocation of extended period of limitation - Held that - According to the petitioners, referring to the circular dated August 23, 2007, the Department itself was uncertain whether the services rendered by the sub-contractor could at all be brought within the purview of taxable service attracting the service tax and such anomaly was clarified by issuing the aforesaid circular. This court, therefore, finds that all these aspects have not been dealt with by the Tribunal but the Tribunal has proceeded in a circuitous manner which is not sustainable. There is no recording of the Tribunal on the merits and this court, therefore, feels the said application should be considered afresh. - matter remanded back to tribunal - Decided in favour of assessee.

Summary

Issues:
Challenge to order by Customs, Excise and Service Tax Appellate Tribunal invoking extended period under Explanation to section 73(1) of Finance Act, 1994 based on wilful misstatement or suppression of facts. Liability of payment of service tax on sub-contractor disputed due to alleged payment by principal-contractor. Tribunal's reliance on Vijay Sharma and Company case for fastening service tax liability on sub-contractor. Dispute over non-deposit of service tax for services rendered as sub-contractor. Tribunal's failure to consider circular clarifying sub-contractor as taxable service provider.

Analysis:
The judgment concerns a challenge to an order by the Customs, Excise and Service Tax Appellate Tribunal invoking the extended period under the Explanation to section 73(1) of the Finance Act, 1994, based on alleged wilful misstatement or suppression of facts. The petitioners argued that they provided all necessary statements to claim an exemption from service tax payment as a sub-contractor. They contended that there was no misstatement or suppression of facts, and thus, the authorities should not have initiated proceedings under the extended period. However, the Department held that the petitioners wilfully misstated and suppressed facts, imposing the liability of service tax payment on them. The petitioners also argued against double taxation, stating that the service tax was already paid by the principal-contractor for the same services.

In an appeal before the Tribunal, an application for waiver of the pre-conditioned deposit of service tax was disposed of, with the Tribunal relying on the principle established in the Vijay Sharma and Company case to hold the sub-contractor liable for service tax on services rendered. The Tribunal placed the onus on the petitioners to prove payment by the principal-contractor, failing which the liability would fall on them. The Tribunal found that the non-payment of service tax for services rendered as a sub-contractor was not barred by limitation, leading to the demand being upheld.

However, the High Court found the Tribunal's decision lacking in proper consideration of the facts and materials on record. The court highlighted a circular clarifying that a sub-contractor is a taxable service provider, indicating uncertainty regarding the applicability of service tax to services provided by sub-contractors. The High Court concluded that the Tribunal's decision was unsustainable and directed a fresh consideration of the application filed by the petitioners, emphasizing a thorough review and reasoned order in accordance with the law within three weeks.

In summary, the High Court quashed the impugned order and instructed the Tribunal to reevaluate the petitioners' application, ensuring a fair hearing and comprehensive review of the materials presented. The judgment emphasized the need for an independent decision by the Tribunal, free from the influence of prior observations, to address the disputed liability of service tax on services rendered as a sub-contractor.