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TMI Blog2024 (6) TMI 849X X X X Extracts X X X X X X X X Extracts X X X X ..... both the lower authorities have discarded this claim of the appellant without properly verifying the fact. The learned Commissioner (Appeals) discarded the claim of payment of service tax by service recipient on the ground that the same is not appearing in the ST -3 returns of EIPL. It is obvious that the detail of the parties for whose transaction the service tax is paid does not reflect in ST- 3 returns. However, this can be ascertained from the back documents such as books of account, parties ledger etc. The lower authorities have not taken any pain to verify the same therefore, rejecting the claim of the appellant that the service tax has been paid by the service recipient is absolutely incorrect. As regard the finding of the Learned Commissioner (Appeals) that even though the service recipient has paid the service tax the appellant is still liable to pay the service tax being a service provider is absolutely incorrect for the reason that in respect of any service, service tax has been paid by anyone, then the liability of the same service tax does not exit. Hence, the same cannot be recovered twice - irrespective of any classification of service if on the same service tax has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to service tax under RCM and therefore, the Appellant was not liable to pay service tax. 1.2 During the Adjudication, the appellant made alternative submission that the Appellant provided manpower supply services, then the Appellant was not liable to pay service tax in terms of Notification No. 30/2012 (supra). Accordingly, the appellant collected a letter from EIPL to show that EIPL paid service tax on the services provided by the appellant under RCM during the disputed period. EIPL specifically mentioned in the letter dated 13.09.2021 issued to the appellant as under:- We have checked all records and found that during the said years, we have paid service tax which was due on our part under Reverse Charge Mechanism under the category of Manpower supply service and not under the legal consultancy services . 1.3 The learned Joint Commissioner of Central Excise and CST passed Order-In-Original No. 22/JC (MAN)/ 2021-22 dated 24.09.2021 whereby he discarded the submissions made by the Appellant and held that the Appellant provided Business Auxiliary Services upon scrutiny of records provided by the Appellant during adjudication process. The Learned Joint Commissioner held that the App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant has been paid by Echjay, for this reason also service tax cannot be recovered twice form the appellant. 2.2 He further submits that the Learned Commissioner (Appeals) decided the matter on the ground that even though the service tax was paid by the recipient of service the appellant is still liable to pay the service tax under business auxiliary service. He submits that this finding of Commissioner (Appeals) is contrary to the larger bench judgment. He submits that Learned Commissioner (Appeals) held that none of the Labour was on payroll of the appellant. All the labourers were on the payroll of M/ss. Echjay Industries Pvt Ltd and therefore services provided by the appellant did not fall under the category of Manpower Supply Service. He submits that the said finding is contrary to the facts of the case in as much as employee provident fund was collected and deposited by the appellant with the provident fund department. As regard billing, based on number of labour provided by the appellant raised invoices for supply of labourers and collected the amount towards wages, ESIC, PF Contribution and bonus etc. This clearly shows that the appellant had provided Manpower Suppl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs 1998 (98) ELT 3 (SC) Essar Projects India Ltd vs. Commissioner of Central Excise Service Tax, Rajkot 2014 (33) STR 696 2.4 He also submits that the Appellant reflected the amount received from EIPL in two categories (i) consideration received towards providing services (ii)reimbursement of expenses. Therefore, contention of the lower authorities, the Appellant provided business Auxiliary service and not legal service cannot be sustained. 2.5 On the ground of limitation, he submits that the fact regarding provision of service was clearly in the knowledge of department through ST -3 returns filed by EIPL as the service tax was being paid by EIPL on the same service on which the appellant is made liable to service tax therefore, there is no suppression of fact. Accordingly, the extended period of demand is not invokable. He placed reliance on the following judgments :- Simplex Infrastructures Ltd. Vs. C.S.T 2016-TIOL- 779- HC-KOL-ST; Delhi International Airport Ltd. Vs. Commissioner of CGST- 2019(24) GSTL 403 (T); Binjrajka Steel Tubes Ltd. Vs. Commissioner of C. Ex., 2016 (342) EL T 302 (T); Roma Henny Security Service Pvt. Ltd. Vs. C.S.T 2018 (8) G.S.T.L. 239 (Del.) 2.6 In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy firm and meant for legal services and for any purpose will not be termed as vendor. Charges paid to second party after deduction of all kind of taxes by the first party for retainership and will be termed as legal charges and will be payable every month as agreed. The said legal charges shall be paid after deduction of taxes at source.The other taxes like service tax and other taxes payable to state and /or Central Govt. Or taxes introduced in future by the Govt. shall be born and payable by the first party. 4.1 From the above clauses of the Agreement it appears that the appellant have provided Legal Consultancy service in relation to labour law therefore, it prima facie appears that the service is correctly classifiable under legal service and the appellant being a service recipient is not prima facie liable for payment of service tax and if at all the service is not classifiable under legal service the appropriate category shall be Manpower Supply Service. However, this is subject to scrutiny of agreement, invoices, other documents. We are of the view that both the lower authorities have not properly appreciated the overall facts and documentary evidence. Moreover, to classify ..... X X X X Extracts X X X X X X X X Extracts X X X X
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