2015 (5) TMI 298 - AT - Service Tax

Demand of service tax - Commercial or Industrial Construction service - Held that - Sub-contractor was not required to pay service tax if the main contractor had paid service tax on the entire value had no legal validity. The CBEC itself revised/reversed that clarification in the year 2007 vide circular dated 23.08.2007. However, prior to 23.08.2007, the appellants certainly had a ground not to pay the service tax as sub-contractors in view of the then prevailing clarification of the Board and therefore the extended period with regard thereto is prima facie not invokable making that component of demand time barred as the Show Cause Notice was issued on 18.10.2010. It is however seen that they were rendering service on their own account also but failed to discharge due service tax thereon. While their contention of non-invokability of extended period can be considered only at the time of final hearing, in view of the said contention and having regard to the fact that an amount of ₹ 3.96 lakhs has already been deposited and the demand relating to their liability as sub-contractor is clearly hit by time bar, we order pre-deposit of ₹ 9 lakhs within 4 weeks - Partial stay granted.

Issues:
1. Service tax demand confirmation for the period 2005-06 to 2008-09 under "Commercial or Industrial Construction" service.
2. Applicability of service tax liability on sub-contractors.
3. Validity of Board's clarification on service tax payment by sub-contractors.
4. Time-barred component of demand.
5. Pre-deposit requirement and stay on recovery of remaining liabilities during appeal.

Analysis:

1. Service Tax Demand Confirmation:
The appeal was filed against the confirmation of a service tax demand amounting to Rs. 32,84,750 for the period 2005-06 to 2008-09 under the category of "Commercial or Industrial Construction" service. The appellants argued that they had already deposited Rs. 3,96,472 and highlighted that part of the contract involved the construction of a community center, which they contended should not fall under the said service category.

2. Applicability of Service Tax on Sub-Contractors:
The Departmental Representative contended that besides working as sub-contractors, the appellants also provided services independently, making them liable for service tax. It was emphasized that the liability of sub-contractors to pay service tax existed even before the withdrawal of the Board Circular in 2007.

3. Validity of Board's Clarification:
The Tribunal acknowledged that the Board's clarification exempting sub-contractors from paying service tax if the main contractor had already paid was no longer valid post the revision in 2007. However, it was noted that prior to 2007, the appellants had a legitimate ground not to pay service tax as sub-contractors based on the previous clarification. This led to the conclusion that the extended period component of the demand was time-barred, considering the issuance of the Show Cause Notice in 2010.

4. Time-Barred Component of Demand:
While the appellants were found to be providing services independently and failing to pay due service tax, the Tribunal deemed the demand related to their liability as sub-contractors as time-barred. As a result, a pre-deposit of Rs. 9 lakhs was ordered within four weeks, with the remaining adjudicated liabilities staying recovery during the appeal process. Failure to comply would result in the dismissal of the appeal for lack of pre-deposit.

5. Pre-Deposit Requirement and Stay on Recovery:
In light of the arguments presented and the partial time-barred nature of the demand, the Tribunal mandated a pre-deposit amount and granted a stay on the recovery of the remaining liabilities pending the appeal process. Compliance reporting was set for a specific date to ensure adherence to the pre-deposit directive.

This detailed analysis of the judgment addresses the various issues raised, the legal arguments presented by both parties, and the Tribunal's reasoned decision on each aspect of the case.

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