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TMI Blog2020 (6) TMI 419X X X X Extracts X X X X X X X X Extracts X X X X ..... chain of events, the credit of the service tax paid by the sub-contractor can be availed by the principal service provider. Extended period of limitation - HELD THAT:- Since the issue has been under dispute and there have been several interpretation regarding the service tax liability of the sub-contractor where the main contractor has paid the service tax on the entire value of the service. It cannot be alleged that there have been element of fraud, collusion, willful mis-statement or suppression of acts with an intent to evade service tax, the demand in such circumstances can only be confirmed for the normal period of demand as provided under Section 73 (1) of the Finance Act, 1994. Insofar as the demand of the service tax on mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entioned impugned order-in-original a service tax demand of ₹ 9,93,059/- has been confirmed under Section 73 (1) of the Finance Act, 1994 and at the same time interest under Section 75 of the Finance Act, 1994 has also been confirmed, penalties under Section 77 and 78 of the Finance Act have also been imposed on the appellant. The appellants preferred an appeal before Commissioner (Appeals) against the abovementioned impugned order-in-original. The Commissioner (Appeals) vide her order-in-appeal No. 53/SM/ST/D-II/2014 dated 21 July 2014 decided the appeal of the appellant whereunder the amount of service tax confirmed have been reduced from ₹ 9,93,059/- to ₹ 8,87,542/- giving them the benefit of cum duty value of the servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Finance Act, 1994, as none of the elements required for invoking the extended time proviso, such as, fraud, collusion, willful mis-statement, suppression of acts or contravention of any of the provisions of the service tax law with an intent to evade the service tax are present in this case. As the appellant was under the bonafide belief that as the service tax is being discharged by the principal service provider on the entire value of the service the appellant need not to pay any service tax. The learned Advocate has also contended that since the issue of the taxability of sub-contractors for the purpose of levy of service tax has been subject matter of numerous judicial interpretation by various courts and it is a settled principle t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 27 July 2017 cited as 2017 (6) G.S.T.L. 529 (Tri. Del.) ; and (iv) Compark E. Services Pvt. Ltd. versus CCE ST, Ghaziabad reported under 2019 (24) G.S.T.L. 634 (Tri. All.) decided on 19 February 2019. 3. Having heard both the sides, we find that so far as the issue of the service tax liability of the sub-contractor is concerned, the matter stands decided on merit in favour of the Department vide the decision of this Tribunal s Larger Bench in the case of Melange Developers Pvt. Ltd. (supra) herein it has been held that in the scheme of service tax the every individual service provider need to discharge his service tax liability and since the scheme of Cenvat credit is very much available to all the service provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A16 (S.C.). The relevant para of the above decision is reproduced here below :- 4. It appears that there was conflict of views among different Benches of the Tribunal on the interpretation of the exemption Notification No. 1/93 dated 28th February, 1993 which dealt with this issue. Consequently, the dispute was referred to a larger Bench of the Tribunal and was ultimately settled in C.C.E. v. Fine Industries, 2002 (146) E.L.T. 53 (Tri.-LB). The Full Bench of the Tribunal held that for the denial of exemption, both the Assessee and the brand name owner, should manufacture identical goods. In the present case, the Assessee was using the brand name for a product other than shaving cream which was the product intended to be manufacture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, fraud and intention to evade payment of tax. Here, the extended period was invoked on the ground that the information was not disclosed to the Department. When there is a bona fide doubt based on the interpretation of the legal provisions, the question of suppression and willful misstatement cannot be sustained . 6. In view of entire above discussion, we hold that so far as the demand of the service tax on merit is concerned, the appeal of the appellant is dismissed, however, we hold that period of demand need to be restricted on the normal period of demand as per the Section 73 (1) of the Finance Act, 1994. In view of above, the appeal is partially allowed. (Order pronounced in open court on 10/06/2020.) - - TaxTMI - TMITax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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