2024 (4) TMI 69 - AT - Service Tax

Short payment of service tax - Management Maintenance and Repair service - Works Contract service - Erection Commissioning or Installation service - appellant had deposited the service tax even before the issue of the show cause notice - cum-tax benefit - interest and penalty - extended period of limitation - HELD THAT - It is undisputed that the appellant had received the amounts indicated in the Forms 16A and in the show cause notice. It is also undisputed that these amounts were received by the appellant for providing services and that such services were taxable. The only exception is the services rendered to M/s Adani Power which was a unit within the SEZ and therefore according to the appellant was exempted from the payment of service tax. In respect of services rendered to M/s Sigma Construction the appellant s only defense is since it had rendered the services as a sub-contractor it need not pay service tax. It was decided by the larger Bench of this Tribunal in case of Commissioner of Service Tax New Delhi vs. Melange Developers Pvt Ltd 2019 (6) TMI 518 - CESTAT NEW DELHI-LB that service tax has to be paid by the sub-contractor also in addition to the main contractor and if the main contractor wants he can take credit of the service tax paid by the sub-contractor as an input service - there are no force in the submission of the appellant that no service tax is to be paid on services rendered to M/s Sigma Construction as a sub-contractor. The demand on this count must be sustained. The services rendered by the appellant to M/s Adani Power are claimed to have been rendered to a unit in SEZ. This contention of the appellant was made before the original authority but it was not accepted for the reason that the exemption under Notification No. 09/2009-ST dated 03.03.2009 which exempts services from payment of service tax was a conditional exemption and certain conditions were not fulfilled. Extended period of limitation - HELD THAT - The appellant was bound to pay service tax after assessing it correctly. It is a different matter if there is a difference of opinion and the appellant had entertained a genuine belief that service tax was not payable on any service and hence did not pay service tax. Therefore the appellant had suppressed the value of services rendered by it to M/s Instrumentation Limited Kota with an intention to evade payment of service tax and therefore extended period of limitation was correctly invoked to raise demand of service tax. Interest - penalty - HELD THAT - If no service tax was separately charged on the invoices by the appellant and only the total amount was received the amount in such invoices should be considered as cum-tax amount and service tax should be calculated accordingly. Consequently the amount of interest if any also needs to be recomputed. Penalty under section 76 also needs to be recomputed accordingly. The impugned order is modified to the extent that the demand of service tax on the services rendered to M/s Adani Power located in SEZ is set aside. Any amount paid as service tax before the issue of show cause notice also needs to be adjusted. Wherever the invoices were raised without separately showing service tax amounts received should be considered as cum-tax receipts. The amount of differential duty may be re-calculated as above. Consequently the amount of interest and penalty also should be recalculated. The matter is remitted to the original authority only for the purpose of calculation in the manner indicated above - appeal allowed.

Summary

Issues Involved:
The issues involved in the judgment are the demand of service tax on services provided by the appellant, the applicability of service tax on services rendered to different companies, the contention of time limitation for demand, and the eligibility for cum-tax benefit.

Demand of Service Tax:
The appellant, a service provider registered with the service tax department, contested a show cause notice demanding service tax of Rs. 7,01,600 along with interest and penalty. The appellant had paid service tax of Rs. 11,63,977 out of the total amount received of Rs. 1,62,09,004. The department believed that the appellant had underpaid service tax and issued the notice.

Taxability of Services Rendered:
The appellant provided various services to different companies, including management, maintenance, repair services, works contract services, and erection, commissioning, or installation services. The judgment analyzed the taxability of services provided to each company, such as M/s SSSTPS, M/s Sigma Construction, M/s Adani Power, M/s Instrumentation Limited, and M/s GLTPP. The tax liability for each service recipient was assessed based on the nature of services provided.

Time Limitation Contention:
The appellant raised the issue of time limitation for the demand, arguing that the demand was time-barred. The appellant also presented defenses for specific services rendered to different companies, such as timely payment of service tax, exemption under SEZ regulations, and the applicability of service tax as a sub-contractor.

Cum-Tax Benefit Eligibility:
The appellant claimed eligibility for cum-tax benefit, stating that service tax was not separately charged on the invoices. The judgment agreed that if no service tax was separately charged, the total amount received should be considered as cum-tax receipts for calculating service tax, interest, and penalty. The recalculations were ordered for the differential duty, interest, and penalty based on this consideration.

Conclusion:
The judgment allowed the appeal to the extent that the demand of service tax on services rendered to M/s Adani Power in SEZ was set aside. Adjustments were directed for amounts paid as service tax before the show cause notice, consideration of cum-tax receipts for invoiced amounts, and recalculations of differential duty, interest, and penalty. The matter was remitted to the original authority for the revised calculations.