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TMI Blog2010 (10) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... e deniable subject to scrutiny under the provisions of Cenvat law. - ST/92 & 851 OF 2008 - ST/80-81 OF 2010 - Dated:- 20-10-2010 - D.N. PANDA, RAKESH KUMAR, JJ. Rajesh Kumar for the Appellant. Sumit Kumar and I. Beig for the Respondent. ORDER D. N. Panda, Judicial Member. The short issue in this case is whether the sub-contractor who provided service to the main contractor shall be exempted from levy of service tax. The appellant being a sub-contractor of BHEL, executed certain work for such main contractor. The main contractor BHEL was awarded work order by BESCL. There is no dispute by either side on this modality of arrangement of contractor and sub-contractor. There is also no dispute that period involved in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on behalf of revenue supports entire reasoning and consequence of the order of adjudication. 4. Heard both sides and perused the records. 5. We do not find any provision in the Finance Act, 1994 to grant immunity to the sub-contractor from levy of service tax when undisputedly taxable services were provided by them. No evidence was before us to notice whether the service provided by the sub-contractor to the contractor was ever been taxed. We noticed that para 9 of the Larger Bench decision in the case of Vijay Sharma Co. (supra) cited by the learned AR clearly speaks that a sub-contractor shall not be immune from service tax under Finance Act, 1994. The said para 9 is reproduced below for appreciation. "9. It is true that there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as well as rules made under the law with effect from 10-9-2004. No set off is permissible prior to this date when sub-broker was not within the fold of law during that period." 6. We noticed that there was non-compliance to the law by the sub-contractor appellant. When we found that the appellant is made liable under Finance Act, 1994 and has paid taxes, cum-tax benefit cannot be denied. So also if there is benefit available towards Cenvat credit that shall not be deniable subject to scrutiny under the provisions of Cenvat law. By this, we do not say that the appellant sub-contractor shall be entitled to Cenvat credit, if otherwise disentitled. 7. We do not find any substance in the arguments that the proceedings is time barred when the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant is subject to scrutiny for which we have issued direction. In view of such a direction, we have partly set aside the impugned order for scrutiny of Cenvat credit which is covered by this appeal. So far as the levy of demand of Service tax of Rs. 61,44,148 which relates to the period March 2006 to September 2006 covered by two return periods, the learned AR submits that the gross value of service pertaining to the tax demand of Rs. 61,44,148 has already been covered in the taxation in the appeal No. ST/92 of 2008 because the assessee has disclosed in its return this figure due to bifurcation of return periods. The same gross value has undergone taxation and cannot be doubly taxed. But learned Commissioner denied that, but revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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