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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 ..... erification of the documents revealed that the appellant had not charged any service tax for the service of Cargo Handling provided by them to their client and hence not paid the same. It was observed that during the relevant period, the appellant received an amount of Rs.4491849/- on which service tax comes to Rs.3,93,872/-. Accordingly a show cause notice was issued for the recovery of service tax amounting to Rs.3,93,872/- by invoking the extended period of limitation along with interest. They were also liable for penal action under Section 75A, 76, 77 and 78 of the Finance Act, 1994. Aggrieved by the order of the adjudicating authority the appellant filed the appeal before the Commissioner who upheld the Order-in-Original except the penalty under Section 76 of the Finance Act was dropped. 4. Heard both the parties and perused the record. 5. Ld. Counsel appearing for the appellant submits that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the law. He further submitted that the appellant has not been rendering Cargo Handling services because these services rendered by M/s MRH Enterprises to Ms. Tata Steel (T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d,namely whether the sub-contractor is liable to pay service tax even if the main contractor has paid the service tax on the entire services. Secondly, whether extended period of limitation can be invoked in such cases when the period involved is prior to the date of the Circular No. 96/07/2007 dated 23.08.2007. 10. Both these issues were considered by this Tribunal in the case of Megh Raj Bansal Vs. CCE, appeal No. ST/1124/2010 vide final order No. 60187/2023 decided on 07.07.2023. This Tribunal in the aforesaid case has considered in detail the various provisions of the services tax and the circular issued by the department and has held by relying upon the judgment of the Larger Bench in the case of GST vs. Melange Developers (Pvt.) Ltd that the sub contractor is liable to pay service tax even when the main contractor has paid the service tax on the total consideration. 11. Secondly, the Tribunal has also held in the 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reason as to why a sub-contractor should not pay Service Tax merely because the main contractor has discharged the tax liability. As noticed above, there can be no possibility of double taxation because the Cenvat Rules allow a provider of output service to take credit of the Service Tax paid at the preceding stage. XX XX XX XX XX XX XX XX XX XX XX XX 30. Thus, for all the reasons stated above, it is not possible to accept the contention of the Learned Counsel for the Respondent that a sub-contractor is not required to discharge Service Tax liability if the main contractor has discharged liability on the work assigned to the sub-contractor. All decisions, including those referred to in this order, taking a contrary view stand overruled 31. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the period prior to the introduction of Cenvat Credit Rules gave an impression that when the main service provider discharged the service tax on gross value there may not be tax liability on the sub-contractor rendering similar service to the main contractor The Tribunal in various cases held in such a case involving interpretation of law and also a bona fide belief regarding service tax liability, will not attract the demand for extended period. We also take note that service tax liability on the appellant when discharged will be available as a credit to RSIC which can be used by RSIC for discharging their overall service tax liability. As such, to impute motivation to the appellant for intention to evade payment of duty is not sustainable. A reference can be made to the Tribunal's decisions in British Airways v. CCE (Adjn.), Delhi reported in 2014 (36) STR. 598 (Tri. - Del.), Atul Ltd. v. CCE, Surat-Il reported in 2009 (237) E.LT. 287 (Tri. - Ahmd.). In the facts and circumstances of this case, we find that the demand for extended period is not sustainable. We have also perused the reasons recorded by the Original Authority for invoking extended period of demand. He recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he part of principle service. One such reference can be made by following circulars: TRU letter F. No. 341/18/2004-TRU (Pt.) dated 17-12-2004 -Circular No. 23/3/97-5.T., dated 13-10-1997 - Master Circular No. 96/7/2007-ST dated 23-8-2007 In fact, also from various following decisions of the Tribunal:- - Urvi Construction v. CST, Ahmedabad 2010 (17) S.T.R. 302 (Tri. Ahmd.) = 2009- TIOL-1890-CESTAT-AHM -CCE, Indore v. Shivhare Roadlines - 2009 (16) S.T.R. 335 (Tri.-Del.) =2009-TIOL-526-CESTAT-DEL - Harshal & Company v. CCE, Vadodara - 2008 (12) S.T.R. 574 (Tri.- Ahmd.) - Semac Pvt. Limited v. CCE, Bangalore-2006 (4) S.T.R. 475 (Tri.- Bang.) 2006-TIOL- 1546-CESTAT-BANG - 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.)= 2008-TIOL-809-CESTAT-BANG - OIKOS v. CCE , Bangalore 2007 (5) S.T.R. 229 (Tri-Bang)= 2006-TIOL-1760-CESTAT-BANG In the Tribunal's decision in the case of OIKOS v. CCE, Bangalore - III reported in 2007 (5) S.T.R. 229 confirmed against the sub-contractor. To the similar effect the Tribunal decision in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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