2025 (4) TMI 1117 - HC - Service Tax

Liability of petitioner as a subcontractor providing works contract services to pay service tax - failure to produce requisite documents and cooperate with the tax authorities affects the determination of service tax liability - HELD THAT - In the present case admittedly the petitioner has a remedy available under Section 35 (b) of the Central Excise Act 1944 read with Section 86 of the Finance Act 1994. The appeal is required to be filed within a period of three months from the date of impugned order before the Tribunal. The impugned order has been passed on 13.02.2024 and the same has been communicated to the petitioner vide Memo No. 535 dated 13.02.2024. The present writ application seems to have been presented in this Court on 26.07.2024 thus it is evident that much after expiry of the period of limitation for filing appeal before the Tribunal the present writ application has been preferred. This Court further finds that the petitioner was given personal hearing through its representative. Several dates were fixed one after another giving opportunity to the representative of the petitioner to produce the documents. The adjudicating authority has found that the noticee was providing taxable services to their various clients - It is the submission of the petitioner that there cannot be a double taxation however even on this point the adjudicating authority has discussed the matter for this purpose the challans showing deposit of service tax by respondent no. 4 and respondent no. 5 have been taken into consideration. Conclusion - i) The petitioner as a subcontractor providing taxable works contract services is liable to pay service tax notwithstanding submissions that principal contractors have paid tax on the overall contract value. ii) The writ jurisdiction is improperly invoked given the availability and non-exercise of the statutory appellate remedy within the prescribed period. The writ jurisdiction was improperly invoked given the availability and non-exercise of the statutory appellate remedy within the prescribed period - Application dismissed.

Summary

The core legal questions considered by the Court in this matter include:

(i) Whether the petitioner, a subcontractor providing works contract services, is liable to pay service tax under the Finance Act, 1994, despite submissions that the primary/principal contractors have discharged such tax liability;

(ii) Whether the petitioner's failure to produce requisite documents and cooperate with the tax authorities affects the determination of service tax liability;

(iii) Whether the writ jurisdiction under Article 226 of the Constitution can be invoked in the present case given the availability of statutory appellate remedies;

(iv) The applicability and interpretation of relevant precedents concerning tax liability in subcontracting arrangements, particularly the principles established in the Larsen and Toubro judgments;

(v) The effect of non-registration under Section 69 of the Finance Act, 1994 on the petitioner's liability;

(vi) The question of double taxation and whether the tax paid by the principal contractor can absolve the subcontractor from liability.

Issue-wise Detailed Analysis

1. Liability of the Subcontractor to Pay Service Tax

The legal framework governing service tax liability is primarily drawn from the Finance Act, 1994, including Sections 65B (definition of taxable services), 66D (exemptions), 67, 68, 70 (assessment provisions), 69 (registration), 73 (recovery of service tax), 75 (interest), 77 and 78 (penalties). The Service Tax Rules, 1994, provide procedural aspects.

The Court examined the impugned order wherein the Commissioner held the petitioner liable for service tax on works contract services provided as a subcontractor. The adjudicating authority relied on documentary evidence including work orders, payment challans, and certificates from principal contractors. Despite the petitioner's claim that the principal contractors bore the service tax liability, the adjudicator found that the petitioner failed to establish that the tax was duly paid to the government exchequer.

The Court noted that the adjudicating authority referred to the principle that under the Act, the service provider is the person liable to pay service tax, although the provider has the right to collect it from the service recipient. The petitioner's contention that the principal contractors had paid service tax on their invoices to the original service recipient (BSPTCL) did not absolve the petitioner of liability. The Court reproduced paragraph 4.5 of the impugned order, which highlighted contradictions and inconsistencies in the petitioner's submissions regarding tax payments and certificates. The adjudicator emphasized that the petitioner as a subcontractor was required to pay service tax, and the principal contractors were not liable to pay on behalf of the subcontractor.

The Court also referred to paragraph 4.6 of the impugned order, which clarified that the legal position is unambiguous: the service provider is liable to pay service tax notwithstanding that the recipient is a principal contractor who further invoices the original recipient.

2. Applicability of Precedents on Works Contract Taxation and Double Taxation

The petitioner relied on the judgments of the Supreme Court and Andhra Pradesh High Court in Larsen and Toubro Limited, which dealt with VAT and sales tax implications on works contracts and subcontracting. The petitioner argued that the subcontractor acts as an agent of the main contractor and that property in goods passes directly from subcontractor to contractee, thus avoiding double taxation.

The Court distinguished the facts and legal context of those judgments, noting that they primarily concerned VAT and sales tax on goods, not service tax on works contract services. The Court observed that the principles in Larsen and Toubro do not negate the statutory liability of the subcontractor to pay service tax on the services rendered.

Further, the Court relied on Tribunal decisions in Murari Lal Singhal and Larsen and Toubro Ltd. cases under service tax law, which held that the subcontractor's services constitute taxable services liable to service tax, and the tax paid by the subcontractor may be availed as Cenvat credit by the principal contractor but does not discharge the subcontractor's liability.

The Court quoted the Tribunal's reasoning that "service tax is to be deposited to the Govt., not by the recipient but by the provider," reinforcing that the subcontractor cannot escape liability on the ground that the principal contractor has paid tax on the gross value of the project.

3. Failure to Cooperate and Produce Documents

The adjudicating authority's findings, uncontroverted by the petitioner, indicated repeated requests for documents and evidence were ignored or inadequately responded to by the petitioner. The petitioner's failure to produce complete work orders, VAT returns, payment challans, and invoices impaired the department's ability to verify the tax liability.

The Court noted that despite opportunities for personal hearings and adjournments, the petitioner did not furnish sufficient evidence to substantiate its claims. This non-cooperation weighed against the petitioner in the adjudication.

4. Availability of Statutory Remedy and Appropriateness of Writ Jurisdiction

The respondent raised the preliminary objection that the petitioner had not availed the statutory remedy of appeal under Section 35() of the Central Excise Act, 1944 read with Section 86 of the Finance Act, 1994, which provides for appeal to the Tribunal within three months from the impugned order.

The Court observed that the impugned order was dated 13.02.2024 and communicated to the petitioner on the same date, while the writ application was filed on 26.07.2024, well beyond the limitation period for filing an appeal. The Court emphasized that writ jurisdiction under Article 226 is extraordinary and not a substitute for the statutory appellate remedy.

The Court relied on Supreme Court precedents underscoring that writ jurisdiction should be exercised sparingly and not to bypass the statutory appeal process.

5. Non-registration under Section 69 of the Finance Act

The adjudicating authority found that the petitioner had not obtained registration as required under Section 69 read with Rule 4 of the Service Tax Rules. This non-compliance further supported the imposition of penalties and confirmed the petitioner's failure to adhere to statutory obligations.

Conclusions on Issues

The Court concluded that the petitioner, as a subcontractor providing taxable works contract services, is liable to pay service tax notwithstanding submissions that principal contractors have paid tax on the overall contract value. The statutory liability to pay service tax rests on the service provider, and the mere fact that the principal contractor pays tax on its invoice does not absolve the subcontractor.

The petitioner's failure to produce documents and cooperate with the department justified the findings against it. The principle of avoiding double taxation does not permit the subcontractor to escape liability; instead, the tax paid by the subcontractor may be credited against the principal contractor's liability, but both remain liable in their respective capacities.

The Court found no merit in the petitioner's reliance on VAT-related precedents to negate service tax liability, as the legal regimes and taxable events differ.

The Court also held that the writ jurisdiction was improperly invoked given the availability and non-exercise of the statutory appellate remedy within the prescribed period.

Accordingly, the writ petition was dismissed.

Significant Holdings

"Under the Act, the liability for payment of service tax has been fixed upon the service provider. Though service provider has a right to collect service tax from the person to whom service is provided. When the noticee has admittedly provided taxable services to another person and charged them for providing such taxable services, statute makes them liable to pay service tax on the taxable value. They cannot escape taxability merely because such another person happened to be their main contractor, who further issued invoices to original service recipient and paid service tax on the amount charged by them." (Paragraph 4.6 of impugned order)

"The services provided by the noticee is an input service for the Primary/Principal contractors, who further issued invoices to actual service recipient i.e. BSPTCL charging for the contract value. Statute has laid down proper recourse to follow in such situations, whereupon the noticee required to pay service tax which could be availed as Cenvat Credit by the Primary/Principal contractors and utilized by them, for payment of service tax on the taxable value involved in their execution of works as per work orders." (Paragraph 4.5 of impugned order)

"Service tax is to be deposited to the Govt., not by the recipient but by the provider, who is the appellant in the present case." (Tribunal in Larsen & Toubro Limited vs. Commissioner of Central Excise, Raipur)

"The remedy under Article 226 is an extraordinary remedy which is to be used sparingly. This jurisdiction is not appellate and it is not a substitute for the ordinary remedies at law." (Reliance on Supreme Court precedents)