2008 (1) TMI 163 - AT - Service Tax

Stay application for demand raised in respect of certain port services and cargo handling services - case of the appellants (sub contractor) is that they are not liable to pay tax, which was paid by main contractors assessee furnished statements indicating the particulars of payments of service tax by the main contractors board circular has clarified that where the main contractor has paid service tax, it was not open to dept. to demand the same tax from the sub-contractors stay granted

Summary

Issues:
1. Demand of service tax and education cess for 'port services' and 'cargo handling services' by the Commissioner.
2. Appropriation of payment by the assessee towards the demand.
3. Imposition of penalties on the appellants.
4. Applicability of tax liability on sub-contractors when main contractors have paid the tax.
5. Interpretation of circulars of CBEC and relevant case law.

Analysis:

1. The Commissioner demanded service tax and education cess from the appellants for 'port services' and 'cargo handling services' provided under sub-contracts by main contractors. The total amount demanded was approximately Rs. 1.5 crores for the period July 2001 to September 2005. Additionally, penalties were imposed on the appellants.

2. The Commissioner also appropriated an amount exceeding Rs. 17 lakhs paid by the assessee towards the demand. This action was part of the overall demand made by the Commissioner.

3. After examining the records and hearing both sides, the Tribunal noted that the appellants' main argument was that they should not be liable to pay the tax as it was already paid by the main contractors. The appellants provided statements showing that the main contractors, The United Stevedores and M/s. Bhoruka Steel Ltd., had paid service tax for the same services during the relevant period.

4. The appellants relied on circulars issued by the CBEC and a decision by a Co-ordinate Bench in a similar case to support their argument that if the main contractor paid the service tax, the Department could not demand the same tax from the sub-contractors. The Tribunal found a prima facie case for the assessee based on the Board's circular and the Tribunal's previous orders.

5. The Tribunal considered the circulars of CBEC and relevant case law, including the decision in BBR (India) Ltd. v. Commissioner of Central Excise, Bangalore [2006] (4) S.T.R. 269 (Tri.-Bang.), to determine the tax liability of the appellants in this case. In light of the Board's circular and previous Tribunal orders, the Tribunal decided to waive the pre-deposit and stay the recovery of penalties and the remaining service tax amount.

This detailed analysis of the judgment provides a comprehensive understanding of the issues involved and the Tribunal's decision based on the arguments presented by both sides and relevant legal provisions and precedents.