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TMI Blog2009 (2) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... r complete justice as the circumstances warranted since the case is under pre-master Circular era. We do appreciate his difficulties. The appellate order was passed on 21st August, 2007 that is just 2 days before the master Circular was issued. We also appreciate that the respondent should get the double taxation relief which is granted in a different manner through the Cenvat Credit Rules, 2004 – refund to be allowed subject to verification - ST/663/2007 - ST/104/2009(PB), - Dated:- 17-2-2009 - S/Shri D.N. Panda, Member (J) and Rakesh Kumar, Member (T) REPRESENTED BY : Shri Fateh Singh, DR, for the Appellant. S/Shri N.K. Bajaj, Advocate and Krishan Garg , C.A. , for the Respondent. [Order per : D.N. Panda, Member ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ependent service provider but serves the service provider, for which he should not be liable to pay service tax. He also pleads that in the absence of definition of service provider, the sub-contractor cannot be a service provider who serves to a service provider. He brings to our notice fairly submitting that the first view of the Board was that sub-contractor should not be liable to tax but such view was changed by a master Circular issued on 23rd August, 2007. According to him, the reversed view of the Board was probably in view of the Cenvat Credit made available by Cenvat Credit Rules, 2004. The respondent's case is related to the period from August, 2002 to Sept., 2004 and that is much before Master Circular was issued on 23-8-07. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties below was also uncalled for, for which the appeal of revenue should be allowed. 3. Heard both sides and perused the record. 4. We have gone through the situation, where the sub-contractors were given to understand by the Board in terms of the Circular placed before us by the ld. Counsel that they shall have no liability while they serve the principal service provider. This was probably the basis of the Tribunal to decide the matter in favour of the sub-contractor in series of cases relied upon by the ld. Counsel as aforesaid. Probably to avoid double taxation sub-contractors serving principal contractors were not brought to the ambit of the tax by first Circular. 5. We have perused the letter placed by learned Counsel received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 hesitate to grant refund. We make it clear that due to confusion of the law the respondent should not claim any interest from the department if refund is admissible. It is also made clear that while granting the refund, the sub-contractor has to meet the test of unjust enrichment. We allow the Cross Objection in the aforesaid terms. While ..... X X X X Extracts X X X X X X X X Extracts X X X X
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