2017 (5) TMI 956 - AT - Service Tax

Sub-contract - The appellants are engaged in providing erection, commissioning or installation service to main contractor M/s ABB Ltd. - case of appellant is that the demand pertains to the period September 2005 to October 2006. The SCN was issued on 10/03/2010, well beyond the normal period of limitation - Held that - during the material time, the clarification issued by the Board on 07/10/1998 regarding the non-liability of the sub-contractor rendering same type of service as the main contractor, is prevailing and followed by the field formations. It is only in the master circular issued on 23/08/2007, the position was clarified with a contrary view - without going into the merits of the case, it is apparent that in such situation of interpretation of the statutory provision, there could be no basis for invoking suppression, fraudulent intend etc. on the part of the appellant - demand hit by limitation - penalties also set aside - appeal allowed - decided in favor of appellant.

Issues:
1. Service tax liability of the appellant as a sub-contractor to M/s ABB Ltd.
2. Applicability of penalties on the appellant.
3. Limitation period for demand of service tax.

Analysis:
1. The appeal challenged the order of the Commissioner (Appeals) confirming the service tax liability of the appellant, who provided services as a sub-contractor to M/s ABB Ltd. The appellant also rendered services to M/s Jindal Power Ltd. The dispute centered on the appellant's activity as a sub-contractor to M/s ABB Ltd., with the lower authorities confirming a service tax liability of ?1,69,052 and imposing penalties on the appellant.

2. The appellant argued that the demand related to the period between September 2005 to October 2006, and the show cause notice issued on 10/03/2010 was beyond the normal period of limitation. The appellant contended that they believed in good faith that the main contractor, M/s ABB Ltd., was liable to discharge the service tax. The appellant highlighted a Board circular dated 07/10/1998, which clarified the liability of the main contractor for service tax. The appellant asserted that the changed clarification regarding the liability of sub-contractors was issued only on 23/08/2007 through a master circular. Thus, the appellant argued against the sustainability of the demand for the extended period and the imposition of penalties.

3. The Department conducted verifications with both the appellant and the main contractor, M/s ABB Ltd., but did not receive details regarding the payment of service tax by the main contractor. The Department contended that the appellant should have discharged the service tax in a timely manner, as no confirmation was provided that M/s ABB Ltd. had paid the service tax. However, upon reviewing the appeal records, it was noted that the appellant did provide taxable services during the relevant period. The demand for tax was issued based on suppression and misstatement to evade payment of service tax. The Board's clarification from 07/10/1998 regarding the non-liability of sub-contractors providing the same service as the main contractor was followed during the material time. The change in position was only clarified in the master circular issued on 23/08/2007. Given the interpretation of the statutory provision and the timing of the clarifications, the demand issued on 10/03/2010 for services rendered as a sub-contractor during the period 09/05 to 10/06 was found to be beyond the limitation period. Consequently, the demand related to services rendered as a sub-contractor and the penalties imposed on the appellant were set aside, leading to the allowance of the appeal in that regard.

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