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TMI Blog2024 (1) TMI 457X X X X Extracts X X X X X X X X Extracts X X X X ..... e cases, after considering the various judgment of the Tribunal and also Larger Bench decision that extended period cannot be invoked to demand service tax. In the present case the show cause notice was issued on 07.02.2007 for the period 2002-03 to 2004-05 and the entire demand is barred by limitation. The appeal of the appellant is allowed on the ground of limitation only with consequential relief, if any as per law. - MR. S. S. GARG, MEMBER (JUDICIAL) AND MR. P. ANJANI KUMAR, MEMBER (TECHNICAL) Present for the Appellant: Shri Sudeep Singh, Advocate Present for the Respondent: Shri Ravinder Jangu, Authorized Representative ORDER The present appeal is directed against the impugned order dated 18.12.2012 passed by the commissioner whereby the Ld. Commissioner confirmed the demand of service tax of Rs. 3,93,872/- by invoking the extended period of limitation along with interest under Section 75A and penalty under Section 77 and 78. 2. Briefly the facts of the present case as per the department, are that the appellants are providing the services of Cargo Handling to their client i.e. M/s MRH Enterprises. 3. During the scrutiny of the records of M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel also referred to the definition of Cargo Handling as provided under section 65(23) to emphasis on his argument that the services rendered by the appellant does not fall under the category of Cargo Handling services. 7. He further submits that the demand confirmed is totally barred by limitation as the show cause notice has been issued on 07.02.2007 for the period from 2002-03 to 2004-05. In support of his submissions, he relied upon the recent decisions of this Tribunal in the case of Megh Raj Bansal Vs. CCE final order No. 60187/2023 dated 07.07.2023 wherein it has been held that in the case of demand against a sub-contractors, extended period of limitation is not applicable where the period involved was prior to the date of Circular of 2007. 8. On the other hand, Ld. DR supported the findings in the impugned order and submitted that even if the main contractor has discharged the service tax on clearing and forwarding agent service but still the appellant being Sub-contractor is liable to pay service tax on Cargo Handling services because the appellant is providing the services to the main contractor and the consideration received by the appellant from the main contrac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.1 It is seen that the amount received from the clients have been subjected to Service Tax at the hands of the main contractor. However, since the appellant, as a sub-contractor has provided services to the main contractor, is liable to discharge Service Tax on the consideration received from the main contractor namely, M/s. ACL. As correctly submitted by the Learned Authorized Representative for the Department, the main contractor would then be eligible to take credit of such Service Tax paid by the appellant as these are input services for the main contractor. This issue is no longer res integra and is settled by the decision of the Larger Bench of the Tribunal in the case of Commr. of S.T., New Delhi v. M/s. Melange Developers Pvt. Ltd. reported in 2020 (33) G.S.T.L. 116 (Tri. CB). It was observed as under: 15. It is not in dispute that a sub-contractor renders a taxable service to a main contractor. Section 68 of the Act provides that every person, which would include a sub-contractor, providing taxable service to any person shall pay Service Tax at the rate specified. Therefore, in the absence of any exemption granted, a sub-contractor has to discharge the tax liability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their share of Revenue received from RSIC the said tax is eligible for credit to RSIC. Further, the issue involved is interpretation of law and there is no intend to evade payment of duty in such situation. The appellants relied on various case laws to reiterate their views. We find that the appellant is having a strong ground regarding the question of time- bar. It is to be noted that all invoices, for full consideration, have been raised by RSIC and the amount collected from the clients [importers and exports] were subjected to service tax which was deposited to the Government. RSIC in turn are paying certain amount to the appellants to get the services in these ICDs. In such situation, there is a clear possibility for a bona fide belief that as the whole amount has been subjected to service tax the amount received by the appellant may not be liable to service tax in connection with the services rendered by them. The issue involved has been a subject matter of interpretation by the Tribunal and High Courts. In fact the earlier Circular issued by the Board, covering the period prior to the introduction of Cenvat Credit Rules gave an impression that when the main service provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Company Vs. CCE S.T., Gujarat reported in 2023-TIOL-223-CESTAT-AHM wherein the Hon ble Tribunal has considered various circulars issued by the department from time to time and also considered various decisions given by the Tribunal and thereafter held that extended period of limitation cannot be invoked to demand service tax in such cases. 12. In this regard, it is relevant to reproduce the said findings of the Tribunal in para 5.2 as under: On limitation also we agree with the argument of Ld, Counsel. We find that during the relevant period there were various Circulars and trade notices by the Commissionerate clarifying that where the principle service provider discharged his service tax liability on the entire value of the services, a separate liability cannot be imposed against the sub-contractor. The said Circulars stands taken note of by the Tribunal in various judgments and its stand held that where the entire service tax has been paid on the full consideration of the services, the sub-contractors' liability would not arise to pay service tax again on the part of principle service. One such reference can be made by following circulars: TRU letter F. N ..... X X X X Extracts X X X X X X X X Extracts X X X X
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