2008 (5) TMI 188 - AT - Service Tax

Sub-contractor - Applicant was providing service under the category of Site Formation and Clearance, Excavation and Earth Moving and Demolition Service - it is apparent on the face of record that the Main Contractor M/s. BHEL paid the tax - Applicant deposited sum of Rs. 38.76 lakhs by cash and debited a sum of Rs. 1.12 Crores approximately from the Cenvat account against the instant demand of tax - Stay Application is allowed.

Summary

Issues:
1. Whether the Applicant provided services attracting levy of Service tax as a sub-contractor liable to pay the tax.

Analysis:
The Applicant filed an application seeking waiver of pre-deposit of tax amounting to approximately Rs. 1.51 Crores and penalties. The case involved M/s. Bharat Heavy Electricals Ltd. being awarded a contract for a Thermal Power Plant at Bhilai Electric Supply Company Ltd., where the Applicant worked as a sub-contractor providing services under specific categories. The key issue was whether the Applicant, as a sub-contractor, was liable to pay Service tax. The Applicant argued citing a Trade Notice that the main contractor, M/s. BHEL, had already paid the Service tax on the entire contract.

The main argument revolved around whether the Applicant's payment by debiting from the Cenvat credit account could be considered as payment of Service tax. The Departmental Representative contended that the Applicant's payment did not qualify as Service tax payment. However, it was revealed that M/s. BHEL had informed the Applicant that they had already paid the Service tax on the entire contract, as evidenced by a letter dated 29th June, 2006. The letter explicitly stated that any further payment by the Applicant would result in double payment since M/s. BHEL had already discharged its Service tax obligation.

Based on the evidence presented, the Tribunal found that M/s. BHEL had indeed paid the tax on the entire contract, and the Applicant had also made payments towards the tax demand. The Tribunal noted that the Applicant had deposited a significant amount against the tax demand and had a prima facie case for waiver of pre-deposit of the entire tax and penalty amount. Consequently, the Tribunal granted the Stay Application, waiving the pre-deposit of tax and penalty until the appeal's disposal.

In conclusion, the Tribunal ruled in favor of the Applicant, acknowledging that the main contractor, M/s. BHEL, had already paid the Service tax on the contract, and the Applicant had made substantial payments towards the tax demand. The Tribunal granted the waiver of pre-deposit of tax and penalty, allowing the Applicant relief until the appeal's final resolution.