2024 (9) TMI 1414 - AT - Service Tax

Liability of sub-contractor to pay service tax when the main contractor has already discharged the service tax - whether the appellant who is a sub- contractor of the main contractor of L T is liable to pay service tax on the service on which the main contractor had paid the service tax? - HELD THAT - The appellant being sub-contractor is liable to pay service tax in view of the Larger Bench s decision in Commissioner Vs. Melange Developers (P.) Ltd. 2019 (6) TMI 518 - CESTAT NEW DELHI-LB but extended period cannot be invoked to demand service tax from the appellant. Hence, the demand of service tax confirmed against the appellant for the normal period and for this purpose, the matter remanded back to the adjudicating authority for computing the demand of service tax for the normal period along with interest. Matter remanded to the adjudicating authority with the direction to do the needful within a period of three months after receiving the certified copy of this order.

Issues Involved:
1. Liability of sub-contractor to pay service tax when the main contractor has already discharged the service tax.
2. Invocation of the extended period of limitation for the demand of service tax.
3. Imposition of penalties under Sections 77 and 78 of the Finance Act, 1994.

Detailed Analysis:

1. Liability of Sub-Contractor to Pay Service Tax:
The core issue was whether the appellant, a sub-contractor, is liable to pay service tax on services provided to the main contractor when the main contractor has already paid the service tax on the entire contract value. The appellant argued that since the main contractor (L&T) had discharged the service tax liability on the entire value, asking the sub-contractor to pay service tax would result in double taxation, which is impermissible under law. The appellant relied on various judicial precedents and CBEC Circulars that supported their stance.

However, the Tribunal referred to the Larger Bench decision in Commissioner Vs. Melange Developers (P.) Ltd., which held that a sub-contractor is liable to pay service tax on the consideration received from the main contractor, even if the main contractor has discharged the service tax liability on the entire contract value. The Tribunal concluded that the appellant/sub-contractor is liable to pay the service tax, thus deciding this issue against the appellant and in favor of the Department.

2. Invocation of the Extended Period of Limitation:
The appellant contended that the demand was confirmed by invoking the extended period of limitation without fulfilling the necessary conditions under the proviso to Section 73(1) of the Finance Act. The appellant argued that the issue involved interpretation of law, and there were contradictory decisions during the relevant period, thus making the invocation of the extended period unjustifiable. The Tribunal considered various decisions, including Max Logistics Ltd. Vs. Commissioner of Central Excise, Jaipur, and Shanti Construction Company Vs. CCE & S.T., Gujarat, which held that in cases involving interpretation of law and bona fide belief regarding service tax liability, the extended period cannot be invoked.

The Tribunal agreed with the appellant's contention, noting that the issue was subject to interpretation and there was no intention to evade payment of duty. Consequently, the Tribunal held that the extended period of limitation could not be invoked, and the demand for the extended period was unsustainable.

3. Imposition of Penalties:
Regarding the imposition of penalties, the Tribunal found that since there was no intention to evade payment of service tax and the issue involved interpretation of law, penalties under Sections 77 and 78 of the Finance Act, 1994, could not be imposed. The Tribunal concluded that penalties were not warranted in this case.

Conclusion:
The Tribunal held that the appellant, being a sub-contractor, is liable to pay service tax as per the Larger Bench decision in Melange Developers (P.) Ltd. However, the extended period of limitation could not be invoked, and penalties were not justified. The Tribunal remanded the matter back to the adjudicating authority to compute the demand of service tax for the normal period along with interest and directed the adjudicating authority to complete the process within three months. The appeal was partly allowed and disposed of on these terms.

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