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TMI Blog2023 (3) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... of construction also involved supply of goods/ material. The Appellate Tribunal in the matter of M/S. ASWINI APARTMENTS VERSUS COMMISSIONER OF GST CENTRAL EXCISE CHENNAI SOUTH [ 2018 (10) TMI 404 - CESTAT CHENNAI ] had held that the composite contact involving supply of materials and rendition of services not taxable either prior to 1-6-2007 or w.e.f. 1-6-2007 under Commercial or Industrial Construction service. However, such composite contracts are taxable only w.e.f. 1-6-2007 under Works Contract service. Prior to 1-6-2007 or w.e.f. 1-6-2007, only those contracts which are purely for services, are taxable under Commercial or Industrial Construction service - the demand of service tax under commercial or industrial construction se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... HNICAL) Shri Jigar Shah, Shri Ambar Kumarawat, Advocates for the Appellant Shri. Tara Prakash, Deputy Commissioner (Authorized Representative) for the Respondent ORDER This appeal is filed against the Order-In- Original No. 22/COMMR/2013 dated 13.02.2013 passed by the Commissioner, Customs Central Excise, Rajkot. 2. The facts of the case, in brief, are that during the course of audit of the records of the Appellant, it was found that appellant have provided services in respect of Civil Work for terminal of HPCL as a sub-contractor of M/s Bridge and Roof Co. (India) Ltd. The appellant had stated in their letter dated 17.07.2009 that they had worked as sub-contractor and the principal contractor has paid the Service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submits that in the present case it is undisputed fact that M/s Bridge Roof Co.(India) Ltd. has paid the Service tax on entire value of the contract. Appellant acted as sub-contractor to the main contractor M/s. Bridge Roof Co. (India) Ltd. During the period there were circulars issued by the CBEC to clarify that the sub-contractor need not to pay service tax if the Service tax is paid by the main contractor. The Larger Bench of the Tribunal in case of Melange Developers Pvt. Ltd. 2019-VIL-352-CESTAT-DEL-ST held that the sub-contractor also need to pay Service tax in their individual capacity. However, the above verdict was delivered in 2019 after recording contrary views of the different benches of tribunal. The issue relates to bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uction also involved supply of goods/ material. The Appellate Tribunal in the matter of Aswini apartments Vs. Commissioner of GST C.Ex. Chennai South 2019(31) GSTL 476 (Tri.-Chennai) had held that the composite contact involving supply of materials and rendition of services not taxable either prior to 1-6-2007 or w.e.f. 1-6-2007 under Commercial or Industrial Construction service. However, such composite contracts are taxable only w.e.f. 1-6-2007 under Works Contract service. Prior to 1-6-2007 or w.e.f. 1-6-2007, only those contracts which are purely for services, are taxable under Commercial or Industrial Construction service. The Tribunal in this matter also rely upon the decisions of Hon ble Supreme Court in the case of Larsen Toubro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shiva Industrial Security Agency v. CCE, Surat - 2008 (12) S.T.R. 496 (Tri.-Ahmd.) Synergy Audio Visual Workshop P. Ltd. v. CST, Bangalore - 2008 (10) S.T.R. 578 (Tri.-Bang.) OIKOS v. CCE, Bangalore - 2007 (5) S.T.R. 229 (Tri.-Bang.) In the Tribunal s decision in the case of OIKOS v. CCE, Bangalore - III reported in 2007 (5) S.T.R. 229 (Tri.-Bang.) after taking note of the Board s Circular dated 7-10-1998 as also Delhi Commissionerate Trade Notice No. 53/CE (ST)/97, dated 4-9-1997, Tribunal held that as the main service provider has discharged the tax liability, no separate Service Tax can be confirmed against the sub-contractor. To the similar effect the Tribunal decision in the case of Viral Builders v. CCE, Surat re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liable to service. Subsequently the matter was referred to Larger Bench. On the disputed issue, it is not only the larger bench decision which settled the law but there were contrary circular of the Board on the issue of payment of service tax by the sub-contractor. In view of this position, there is no suppression of facts or any mala fide intention to evade payment of service tax on the part of appellant. Further, the ground of bona fide belief can be invoked in the present case as the main contractor who entered into agreement with the ultimate client were charging such client along with service tax as claimed by the appellant. There is a reason for a bona fide belief in such arrangement regarding non-liability of sub-contractor when th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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