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TMI Blog2013 (5) TMI 697X X X X Extracts X X X X X X X X Extracts X X X X ..... ovider has discharged the duty liability, no separate service tax can be confirmed against the sub-contractor. Also see Viral Builders vs. CCE, Surat (2010 (11) TMI 312 - CESTAT, AHMEDABAD),Newton Engg. & Chemicals vs. CCE, (2007 (8) TMI 293 - CESTAT AHMEDABAD) and Vijay Sharma & Co. vs. CCE, Chandigarh(2010 (4) TMI 570 - CESTAT, NEW DELHI) By applying the ratio of the above decisions to the facts of the present case, it is found that in as much as the payment of service tax on the full cargo handling service does not stand disputed by the Adjudicating Authority, second time confirmation of service tax on that part of the services, which stands further delegated to the appellant, cannot be upheld. There are certificates given by M/s AAI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nes, who unload the imported cargo at Delhi Airport and are charging the other airlines for providing the said cargo handling services. M/s AAI is registered with the department of service tax and is discharging the entire service tax on the said services being provided by them to various airlines. The said service tax is being paid by M/s AAI on the entire value of the services rendered by them to their various customer airlines. 4. As M/s AAI has further engaged the present appellant for doing the job of loading, unloading, packing, unpacking of imported cargo, they were paying the present appellant out of the total consideration received by them from the other airlines. Revenue by entertaining a view that the services of cargo handlin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey are providing cargo handling services independently to M/s AAI. The fact that M/s AAI has paid the service tax on the entire consideration received by them from the other airlines, cannot dilute the appellants liability to pay service tax on the services rendered by them to M/s AAI. The Adjudicating Authority also upheld the invocation of longer period of limitation on the ground that the appellant has not disclosed the complete facts to the Revenue. However, he did not impose any penalty on the appellant on the ground that the entire tax has been paid by M/s AAI in their capacity as cargo handling agency and the tax now being confirmed against the present appellant would be available as credit to M/s AAI. He also observed that the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entire value of the services, a separate liability cannot be carved out against the sub-contractor. The said Circulars stands taken note of by the Tribunal in various judgments and its stand held that where the entire service tax has been paid on the full consideration of the services, the sub-contractors liability would not arise to pay service tax again on the part of principle service. One such reference can be made to the Tribunals decision in the case of OIKOS vs. CCE, Bangalore III reported in 2007 (5) S.T.R. 229 (Tri. Bang.). After taking note of the Board s Circular dated 7/10/98 as also Delhi Commissionerate Trade Notice No. 53/CE (ST)/97 dated 4/9/97, Tribunal held that as the main service provider has discharged the duty liabili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at a lump-sum rate. As such, there is no dispute about payment of full service tax by M/s AAI. In the light of the discussion above, we set aside the confirmation of demand of duty on the above point, without dealing with the appellant s contention that the entire demand is barred by limitation, though we find that Commissioner himself has not imposed any penalty on the appellant on the point of bonafide in which case extended period of limitation is not available to the Revenue. 10. In as much as we allowed the assessee appeal and has set aside the confirmation of demand of service tax, the Revenue s appeal for imposition of penalty on the assessee does not survive. The same is accordingly rejected. Both the appeals are disposed of in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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