2013 (9) TMI 953 - AT - Service Tax

Non payment of service tax by the sob-contractor under a bonafide belief that main contractor has paid the service tax - Management, maintenance or repair service - Held that - the appellant has paid the entire service tax liability with interest. It is also seen that they are contesting the issue on merits. - appellant could have entertained a bona fide belief in not discharging the service tax liability as was indicated in Clause No15.2 of the agreement entered into with M/s. Mech Engineers & Erectors Ltd., which specifically states that the main contractor will discharge the service tax liability. On perusal of the records, we find that such a Clause has been implemented by the main contractor. In view of the fact that appellant could have entertained a bona fide belief, we find that the show cause notice which is issued on 13.1.2012 for the demands of service tax for the period April 2007 to March 2008, seems to be hit by limitation - stay granted.

Summary

Issues:
1. Waiver of pre-deposit of service tax demand under 'erection, commissioning, and installation service' and 'management, maintenance, or repair services' for specific periods.
2. Bona fide belief of the appellant regarding service tax liability under different categories.
3. Interpretation of contractual clause regarding the responsibility for service tax payment.
4. Application of Circular No.96/7/2007-S.T. and precedent cases on subcontractors' service tax liability.
5. Limitation period for issuing show cause notice on service tax demands.

Analysis:
The judgment deals with a stay petition seeking waiver of pre-deposit of a substantial service tax demand under two categories for specific periods. The appellant contested the service tax liability under 'erection, commissioning, and installation service' based on a bona fide belief that the main contractor was responsible for discharging the tax liability. The appellant had already paid the service tax liability under 'management, maintenance, or repair service' along with interest. The departmental representative argued against the appellant's belief, citing Circular No.96/7/2007-S.T. and a precedent case. The Tribunal acknowledged the appellant's bona fide belief, supported by a contractual clause with the main contractor stating the responsibility for service tax payment. The Tribunal noted that the main contractor had indeed paid the service tax liability on the entire contract, validating the appellant's belief. Consequently, the show cause notice issued for the service tax demands seemed to be beyond the limitation period, favoring the appellant.

In conclusion, the Tribunal allowed the application for waiver of pre-deposit of the remaining dues, staying the recovery until the appeal's disposal. The judgment highlighted the importance of a bona fide belief based on contractual agreements and precedent cases in determining service tax liabilities. The decision emphasized the need for a thorough examination of the facts and legal provisions to ensure fair treatment in tax-related disputes.