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TMI Blog2024 (4) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... decided by the larger Bench of this Tribunal in case of Commissioner of Service Tax, New Delhi vs. Melange Developers Pvt Ltd [ 2019 (6) TMI 518 - CESTAT NEW DELHI-LB ] that service tax has to be paid by the sub-contractor also in addition to the main contractor and if the main contractor wants he can take credit of the service tax paid by the sub-contractor as an input service - there are no force in the submission of the appellant that no service tax is to be paid on services rendered to M/s Sigma Construction as a sub-contractor. The demand on this count must be sustained. The services rendered by the appellant to M/s Adani Power are claimed to have been rendered to a unit in SEZ. This contention of the appellant was made before the original authority but it was not accepted for the reason that the exemption under Notification No. 09/2009-ST dated 03.03.2009, which exempts services from payment of service tax was a conditional exemption, and certain conditions were not fulfilled. Extended period of limitation - HELD THAT:- The appellant was bound to pay service tax after assessing it correctly. It is a different matter if there is a difference of opinion and the appellant had en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asked by the Superintendent of Central Excise, Sriganganagar for details of the services which it had rendered to GTLPP through several letters. Further, the appellant was also persuaded to provide copies of its Form-16 A and income tax returns. After examining these documents, the department believed that the appellant had received certain amounts on which it had not paid service tax. Further inquiries lead the department to also form an opinion that the appellant had provided services to the following five companies: S No. Company Service Provided 1. M/s. Suratgarh Super Thermal Project, Suratgarh (SSSTIPS) Management, Maintenance and Repair U/s 65 (64) 2. M/s. Sigma Construction Kolkata Works Contract u/s 65 (105) 3. M/s Adani Power (Tunda & Sircha) Works Contract u/s 65 (105) 4. M/s Instrumentation Limited, Kota Works Contract u/s 65 (105) 5. M/s Giral Lignite Thermal Power Project- Barmer (GLTPP) Erection, Commissioning or Installation u/s 65 (39a) 3. The total amount received by the appellant during the period April, 2006 to March, 2010 was Rs. 1,62,09,004/- on which the total service tax payable was calculated as Rs. 18,71,721/-. It was found that the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided by the jurisdictional Deputy Commissioner of one of the service recipient M/s GLTPP, Barmer. (ii) Following the investigations, Forms 16A were obtained which showed the actual amounts paid to the appellant by various service recipients. The total amounts so received were found to be less than the amounts declared in the service tax returns. Therefore, there was suppression of value of taxable service and consequently, short payment of service tax as a result. (iii) The appeal may be dismissed and the impugned order may be upheld. 7. We have considered the submissions advanced from both the sides and perused the records. 8. It is undisputed that the appellant had received the amounts indicated in the Forms 16A and in the show cause notice. It is also undisputed that these amounts were received by the appellant for providing services and that such services were taxable. The only exception is the services rendered to M/s Adani Power, which was a unit within the SEZ and, therefore, according to the appellant was exempted from the payment of service tax. 9. We now proceed to discuss the taxability of the services rendered to each of the five service recipients. 10. The appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r service provided in, a Special Economic Zone or a Unit, to carry on the authorised operations by the Developer or entrepreneur; (b) exemption from any duty of customs, under the Customs Act, 1962 (52 of 1962) or the Customs Tariff Act, 1975 (51 of 1975) or any other law for the time being in force, on goods exported from, or services provided, from a Special Economic Zone or from a Unit, to any place outside India; (c) exemption from any duty of excise, under the Central Excise Act, 1944 (1 of 1944) or the Central Excise Tariff Act, 1985 (5 of 1986) or any other law for the time being in force, on goods brought from Domestic Tariff Area to a Special Economic Zone or Unit, to carry on the authorised operations by the Developer or entrepreneur; (d) drawback or such other benefits as may be admissible from time to time on goods brought or services provided from the Domestic Tariff Area into a Special Economic Zone or Unit or services provided in a Special Economic Zone or Unit by the service providers located outside India to carry on the authorised operations by the Developer or entrepreneur; (e) exemption from service tax under Chapter V of the Finance Act, 1994 (32 of 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aise demand of service tax. 18. The appellant does not dispute that it had rendered services to M/s GLTPP and that the services were taxable. It also does not dispute that it had not paid service tax. The only contention is that it paid service tax on whatever service was received by M/s GLTPP. The appellant was required to pay service tax on the value of services rendered by it, and since it had not done so, the differential service tax is correctly recoverable from the appellant. 19. Insofar as the last contention of the appellant is concerned, we agree that if no service tax was separately charged on the invoices by the appellant and only the total amount was received, the amount in such invoices should be considered as cum-tax amount and service tax should be calculated accordingly. Consequently, the amount of interest if any, also needs to be recomputed. Penalty under section 76 also needs to be recomputed accordingly. 20. In view of above, the impugned order is modified to the extent that the demand of service tax on the services rendered to M/s Adani Power located in SEZ is set aside. Any amount paid as service tax before the issue of show cause notice also needs to be ad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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