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TMI Blog2019 (6) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... lar issued on 23.8.2007 which is much after the period in dispute. Further, in the facts and circumstances of this case alleging suppression with an intent to evade payment of tax is not justified in view of the Trade Circular as well as various decisions of the Tribunal - further since the Commissioner has not considered various certificates/letters filed by the appellant from various prime consultants, this case needs to be remanded back to the adjudicating authority with a direction to pass a de novo order after considering all the documentary evidence which may be produced by the appellant in support of their claim. Appeal allowed by way of remand. X X X X Extracts X X X X X X X X Extracts X X X X ..... th effect from 1.4.2003) which cannot at any rate be classifiable under Consulting Engineering Service because the same would render the actual and specific entries introduced later redundant and defeat the legislative intent. For this submission, he relied upon the decision of the Tribunal in the case of BCCI vs. CST, Mumbai reported in 2007 (7) STR 384 (Tri.-Mumbai). 4.1 The learned counsel also submitted that the Commissioner in the impugned order has failed to exclude the value of reimbursable expense incurred by the appellant on behalf of their service recipient from the taxable value for not producing certification from the proper authorities like income tax authorities to corroborate their contention. This finding of the Commissioner is contrary to the judgment of the Hon'ble Apex Court in the case of UOI vs. Intercontinental Consultants and Technocrats Pvt. Ltd. reported in 2018 (10) GSTL 401 (SC). It is his further submission that the learned Commissioner in the impugned order has failed to treat the provision of service to the service recipient abroad and consideration received in foreign convertible currency as "Export of Service" in terms of Export of Service Rules, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the same prospectively. Further, the decision relied upon by the DR is also contrary to the following decisions: * L & T Ltd. vs. State of Andra Pradesh reported in 2006-TIOL-327-HC-HYD upheld by the Hon'ble Supreme Court as reported in 2008-TIOL-158-SC. * Nana Lal Suthar vs. CCE, Jaipur-I: 2015-TOIL-2357-CESTAT-DEL. * CCE, Indore vs. Shivhare Roadlines: 2009-TIOL-526-CESTAT-DEL. 4.4 He further submitted that in the present case certificates/letters from the prime consultant was produced before the learned adjudicating authority which he has failed to consider. Learned counsel also submitted that demand for the period beyond the normal period of limitation is not sustainable inasmuch as there is no willful suppression or misstatement or contravention of any provision with an intent to evade any tax. The appellant was under a bona fide belief that since they are providing service not directly to the client but to the prime/main consultant, they are not liable to discharge service tax when the main consultant is paying the service tax and this bona fide belief of the appellant is fully vindicated by the Circular dated 4.7.1997. Therefore, suppression cannot be alleged to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed upon the Circular issued on 23.8.2007 which is much after the period in dispute. Further, we find that other contentions of the appellant regarding the reimbursable expenses and export of service have also not been considered and no findings have been returned by the Commissioner in the impugned order. Further, we find that the decision relied upon by the DR in the case of Sunil Hi-tech Engineers Ltd. is not applicable as the facts in that case are clearly distinguishable and moreover the assessee was justifying in having a bona fide belief that he is not liable to pay service tax because of the various decisions during the relevant time in his favour as also the Trade Circular of 1997. Further, we find that in the case of Nana Lal Suthar vs. CCE: 2015-TIOL-2357-CESTAT-DEL. wherein the Tribunal has held as under: "1. The brief facts are that appellant is a subcontractor of M/s. Umesh Construction Company and was providing commercial construction services to the main contractor. A show-cause notice was issued for the period 2006-07 to 2008-09 proposing demand of service tax for providing taxable services of commercial construction services. The appellants defended the SCN conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xation relief which is granted in a different manner through the CENVAT Credit Rules, 2004. Therefore, we are of the view that if it is proved from record on verification, that the principal contractor has discharged the tax liability in respect of the contract, cascading effects should be avoided and the appellant is entitled to refund. It would be proper to implement the law without causing any harassment to the respondent if the cascading effect is demonstrated by the record itself upon examination of records of the principal contractor and the sub-contractor. This exercise is required to be done by the learned adjudicating authority. In the facts and circumstances as well as due to peculiar observation of the ld. Appellate authority below, we have no hesitation to direct the learned adjudicating authority to call for record of both the principal contractor and sub-contractor and satisfy that the liability that is required to be discharged has been done. Sub-contractor shall not be doubly taxed if the principal contractor has discharged the liability. Once the authority is satisfied that there is situation amounting to double taxation of the same subject matter, he should not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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