2018 (4) TMI 1502 - AT - Service Tax

Management, Maintenance or Repair Services - After rectification and repair, the repaired assembly were supplied back to LMW who dealt with the same later on - Held that - the tax liability of the sub-contractor for the taxable service cannot be denied as per the legal provisions. The provisions of CCR 2004 is clear to the effect that tax liability will arise on value addition. The concept that the ultimate service provider who used the input service alone is liable to pay tax is against the very principle of Value Added Tax. The appellant shall be liable for service tax for the repair and maintenance charges undertaken by them even in case such labour charges form part of service tax paid by LMW. Appeal allowed in part.

Summary

Issues:
Service tax liability of the appellant under the category of Management, Maintenance, or Repair Services in terms of Section 65 (64) of the Finance Act,1994.

Analysis:
The appeal involved a dispute regarding the service tax liability of the appellant under the category of Management, Maintenance, or Repair Services. The appellants were engaged in the manufacture of textile machinery spares and had received damaged Nipper assembly from a company for repair and reconditioning work. The goods were returned to the appellants for rectification after defects were noticed by the buyer. The lower authorities confirmed the service tax liability with a penalty. The appellant argued that they should not be subjected to tax as the main contractor had already discharged service tax under the same tax entry. The appellant claimed that the issue was settled by a master circular of the Board issued in August 2007, clarifying the tax liability of subcontractors. The appellant contended that they had evidence to prove the payment of tax by the main contractor. The authorities reiterated their findings, leading to the appeal.

Upon examination of the appeal records, it was noted that the impugned order rejected the appellant's contention due to a lack of supporting evidence regarding the payment of service tax by the main contractor. The tribunal observed that the tax liability of the subcontractor for the taxable service cannot be denied as per legal provisions, emphasizing that tax liability arises on value addition. However, the tribunal acknowledged that clarifications issued by the Board from 1997 created a bonafide belief that subcontractors were not liable when the main contractor discharged service tax. This belief could serve as a defense against the extended period and penalty, but not for non-payment of service tax. The tribunal considered a letter from the main contractor clarifying the payment of service tax on the repair charges, which included labor charges paid to the appellant. The letter confirmed that the main contractor had paid service tax and requested the appellant not to pay any additional tax on the labor charges. In light of this evidence, the demand for the extended period was deemed unsustainable, and the appellant was held liable for service tax on the repair and maintenance charges, even if labor charges were part of the tax paid by the main contractor.

In conclusion, the tribunal set aside the impugned order to the extent indicated above and partly allowed the appeal with any consequential relief as per the law.