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TMI Blog2024 (6) TMI 768X X X X Extracts X X X X X X X X Extracts X X X X ..... LTD. [ 2019 (6) TMI 518 - CESTAT NEW DELHI-LB] and the reference was answered that a sub-contractor would be liable to pay service tax, even if the main contractor has discharged service tax liability on the activity undertaken by the subcontractor in person of the contract. It is found that the agreement submitted by the appellant states that, sure service tax paid by you on the work carried out for us will be reimbursed subject to production/ submission of challan for the service tax paid on the work carried. The terms of the agreement clearly negates the submission of the appellant that the main contractor has paid the duty. In terms of the agreement, the appellant was required to discharge the service tax liability, which was then to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 76 and 77 of the Act and sections needs no interference as the appellant has failed to pay the service tax and has thereby contravened the provisions of section 66 of the Act. Appeal dismissed. - HON BLE MS. BINU TAMTA , MEMBER ( JUDICIAL ) And HON BLE MR. P. V. SUBBA RAO , MEMBER ( TECHNICAL ) For the Appellant : None Present For the Respondent : Shri Manoj Kumar , Authorised Representative ORDER BINU TAMTA : 1. Challenging the Order-in-Appeal No. 98/ST/DLH/2018 dated 18.05.2018, the appellant has filed the present appeal on the issue whether service tax can be demanded for the services rendered as sub-contractor when the main contractor had paid the service tax. 2. M/s. Sharma decorators The appellant is registered with the department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod. In appeal, the order in original dated 28.02.2017 was confirmed by the impugned order. The appellant has filed the present appeal before this Tribunal. 4. The present appeal was listed for hearing on 25.10.2023 when a statement was made by the learned counsel for the appellant that identical case bearing appeal no. ST/51011/ 2018 is reserved for orders and hence the present appeal may await the outcome of the same. On the next date of hearing on 19.12.2023 again the same request was made. The learned counsel for the appellant then circulated a letter seeking time as the order in the appeal referred above was reserved vide order dated 12.10.2023, and accordingly the matter was adjourned. The final order was passed in ST/51011/2018 on 24 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons Co. in SERTA 6/2017 dt. 22.09.2017 has held that such an order is liable to be set aside instead of Remand to Adjudicating Authority. 6. The issue whether the appellant being a sub-contractor is liable to pay service tax when the main contractor has discharged the total tax liability was referred to the Larger Bench of the Tribunal in Commissioner of Service Tax, New Delhi v M/s Melange Developers Pvt Ltd. 2022 (33) GSTL 116 (Tri.-LB) and the reference was answered that a sub-contractor would be liable to pay service tax, even if the main contractor has discharged service tax liability on the activity undertaken by the subcontractor in person of the contract. We find, that in respect of the earlier show cause notice dated 15.10.2012 iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espect to the payments made or received under the agreement. In absence of the details, the authorities below rightly concluded that it cannot be ascertained that the payments received by the appellant from the main contractor are in respect of works carried out with material and hence the department was justified in resorting to Best Judgement Assessment as per section 72 of the Act on the basis of the limited information available with them. 8. The appellant is providing Commercial or Industrial Construction Services as defined under Section 65 (25b). The provisions of Section 65 (25b) as inserted by the Finance Act, 2005 and later on amended by the Finance Act, 2010 reads as under: (25b) Commercial or industrial construction ] means (a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person liable to pay service tax by shifting their onus of depositing the service tax liability to another person. Under section 68 of the Act, the onus of paying service tax has been clearly specified and the appellant does not fall under any exemption. It appears that the contention raised by the appellant that the services provided by them as sub-contractor to Akshardham Cultural Complex would fall under the exemption as per the Notification No. 25/2012-ST dated 20.06.2012 which exempts services by any entity registered under section 12 AA of the Income Tax Act, 1961 by way of charitable activities. The appellant is not entitled to claim the exemption under the said notification as it speaks services by and not services to . 10. The app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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