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TMI Blog2023 (12) TMI 1005X X X X Extracts X X X X X X X X Extracts X X X X ..... vice Tax. Despite this whether the appellant can be demanded service tax twice on 75% of service charge. Apart from above common issue in appeal No. 12079 additional following issues are also involved (i) whether the service provided to Reliance Industries Ltd. (SEZ) Jamnagar is taxable or otherwise and (ii) Service tax demand on differential value arising between the figure shown as credit of service charge in the books of accounts and ST-3 return on account of credit shown twice once against receipt of service charge and second the value taken from 26-AS 2. Shri Himanshu Agravat, learned counsel, appearing on behalf of the appellant, at the outset, submits that the appellant even if not eligible for 75% of abatement not considering the service as Manpower Recruitment Agency Service, the fact is not under dispute that on entire 100% service charge, service tax was paid (on 25% by the appellant, on 75% by the recipient of Service), therefore, once the service has suffered the Service tax then once again the demand cannot be raised. He placed reliance on the following judgments: Electronics Technology Parks Final Order No. 20645-20646/2021 in ST appeal No. 26639 & 27143/2013 Ka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rged the service tax, which is clear from the work contract as well as the confirmation given by M/s Leo Coats (I) Private Limited in the following letter : Even though we are of the view that the appellant's service is classifiable under Erection Installation & Commissioning Service but the fact remains that on the entire service the service tax was paid i.e. 25% by the appellant and on 75% by the service recipient. Since the entire service has suffered the service tax only for technical reason the department has no right to demand the service tax twice, therefore, on this ground, the service tax demand on the basis of is not sustainable. This issue has been considered time and again and in the following judgments, it has been held that service tax cannot be demanded twice even though the person who is liable to pay the service tax has not discharged the service tax but some other person has discharged the service tax on the same service. In the case of Dhariwal Industries Limited Tribunal has observed the following: "The issue involved in the present case is that:- (i) Whether the appellant is liable to pay the service tax on the GTA under reverse charge mechanism in the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of C. Ex., Meerut 2009 (183) ELT 225 (S.C.)-2005 (183) ELT 225 (S.C.) Commissioner of Customs Mumbai Vs. Toyo Engineering India Ltd. 2006 (201) ELT 513 (S.C.) Reckitt & Colman of India Ltd vs. Collector of Central Excise - 1996 (88) ELT 641 (SC) Prince KhadiWoollen Handloom Prod. Coop. Indl. Society vs. CCE 1196 (88) ELT 637 (SC) Commissioner of C.Ex., Chandigarh vs. Shital International - 2010 (259) ELT 165 (SC) Collector of Central Excise vs. HMM Limited - 1995 (76) ELT 497 (SC) CCE, Belgaum vs. Vasavadutta Cements Ltd - 2018 (11) GSTL 3 (SC) 3. Shri Prashant Tripathi, learned Counsel appearing on behalf of the Revenue reiterates the finding of the impugned order. 4. We have carefully considered the submission made by both sides and perused the records. We find that the department case of demand of service tax on appellant and disallowance of cenvat credit is on the ground that even though the transport agency has discharged the service tax since they are not liable to pay the service tax, the payment made by them is deposit. Consequently the appellant is liable to pay the service tax on GTA on reverse charge mechanism as well as the amount paid by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transporters to them. 7. I find that the Central Board of Indirect Taxes and Customs vide TRU Clarification [***] F.No. 341/18/2004-TRU(PT), dated 17-12-2004 has clarified that if service tax due on transportation of a consignment has been paid or is payable by a person liable to pay Service Tax, Service Tax should not be charged for the same amount from any other person, to avoid double taxation. 8. In view of the above discussions, it is my considered view, that once tax has already been paid on the services, it was not open to the Department to confirm the same against the appellant, in respect of the same services. I accordingly, set aside the impugned order and allow the appeal with consequential relief, to the appellant." Umasons Auto Compo Pvt. Ltd. Vs. Commissioner of C.Ex Aurangabad2016 (46) STR (Tri. Mumbai) "Heard both sides. 2. The appellant filed the appeal against the impugned order passed by the Commissioner (Appeals), whereby the Commissioner (Appeals) upheld the adjudication order whereby the demand of Service Tax was confirmed. The demand is confirmed on the ground that the appellant being recipient of GTA service is liable to pay Service Tax. 3. The C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e service, itself has paid 100% Service Tax, therefore, no demand is sustainable against the appellant as the whole Service Tax on the said service has already recovered by the Revenue and no double tax can be demanded from the appellant. 3. To support his contention, he relied on the decision of this Tribunal in the case of Omeri India Pvt. Ltd. vide Order No. A/13212/2017, dated 12-10-2017 by CESTAT, Ahmedabad. 4. On the other hand, the Ld. AR reiterated findings of the impugned order. 5. Heard the parties and considered the submissions. 6. I find that as per Notification No. 30/2012-S.T., dated 20-6-2012 there is no dispute that the appellant was required to pay 75% of the Service Tax on 'Manpower Recruitment Agency Service' availed. For the initial period, on pointing out by the Revenue the appellant immediately paid Service Tax. In that circumstance, the said demand is not sustainable against the appellant. For the another invoice on which the appellant did not pay Service Tax but the service provider paid the 100% of Service Tax. In that circumstance, the appellant is not required to pay 75% of the Service Tax in terms of Notification No. 30/2012-S.T., dated 20-6-2012 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited by the GTA in the facts of the present case. I further hold that Rule 2(1)(d)(v) of Service Tax Rules does not override the provisions of the Act. Moreover I find that it has been clarified by C.B.E. & C. in Circular No. 97/8-2007-S.T., dated 23-8-2007 - clarifying that service tax may be paid either by the consignee or by the consignor or by the GTA, where the consignee is a manufacturer and the service in question is input service for them, in such case manufacturer would be eligible to take the Cenvat credit of the same. Accordingly I hold that the appellant have taken Cenvat credit in accordance with law. I further find that invoice is a prescribed document under Rule 9(1)(f) of Cenvat Credit Rules, 2004 on which credit can be taken. Accordingly I set aside the impugned order and allow the appeal. The appellant will be entitled to consequential benefit, if any, in accordance with law." Commissioner of Service Tax, Meerut-II Vs. Geeta Industries Pvt. Ltd.-2011 (22) STR 293 (Tri.- Del.) "Revenue came in appeal because the service recipient of Goods Transport Agency has not paid the service tax while the transporter itself had paid the service tax. This appeal is to reali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of service tax. In this regard in the case of CCE Patna vs Advantage Media Consultant, 2008 (10) STR 449 (Tri Kolkata), it was held as under : "it is inter alia observed that service tax is an indirect tax. As per this system of taxation, tax borne by the consumer of goods/services is collected by the appellant (manufacturer/service provider) and remitted to the Government. When the amount is collected for the provision of services, the total compensation received should be treated as inclusive of service tax due to be paid by the ultimate customer of the services unless service tax is also paid by the customer separately. When no tax is collected separately, the gross amount has to be adopted to quantify the tax liability treating it as value of taxable service plus service tax payable." Accordingly, the service tax demand on the service provided to SEZ is not sustainable. 6. As regard, remaining demand, the appellant have strongly contested on limitation. In this regard, we find that in the submission of the appellant that the show cause notice has not expressly alleged any ingredient such as suppression of fact, misdeclaration, fraud, collusion etc with intent to evade paym ..... X X X X Extracts X X X X X X X X Extracts X X X X
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