9911796707
TMI Blog2024 (9) TMI 618X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1994. Once the Service Tax has been discharged irrespective by any person on the same activity, on the same value Service Tax cannot be demanded twice by the Government otherwise it will amount to unjust enrichment to the government, which is not permissible in law. Thus, it is settled that Service Tax cannot be demanded twice, once the proper Service Tax was discharged irrespective of the payment made by any person - since admittedly the entire Service Tax has been discharged on the supply of manpower service , no further demand exist and the same cannot be recovered. The impugned order is set aside - Appeal is allowed. - HON'BLE MEMBER ( JUDICIAL ) , MR. RAMESH NAIR And HON'BLE MEMBER ( TECHNICAL ) , MR. C L MAHAR Shri S Suriyanarayanan , Advocate for the Appellant Shri Prashant Tripathi , Superintendent ( AR ) for the Respondent ORDER RAMESH NAIR The brief facts of the case are that the appellant have received the Service of Supply of Manpower . As per the Notification 30/2012-ST dated 26.06.2012 as amended by Notification No. 07/2015-ST dated 01.03.2015, read with Rule 2 (d) (i) (F) of the Service Tax Rules, 1994 in respect of Services provided or agreed to be provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lue as provided under the Finance Act, 1994. Once the Service Tax has been discharged irrespective by any person on the same activity, on the same value Service Tax cannot be demanded twice by the Government otherwise it will amount to unjust enrichment to the government, which is not permissible in law. This issue has been considered time and again in various judgments cited by the appellant. In the case of Samsung India Electronics Pvt. Ltd (Supra) the following order was passed:- 4.1 We have considered the impugned orders along with the submissions made in appeal and during the course of argument. 4.2 It is a case of the appellant that they had been paying the service tax in respect of all the services received to the provider of service tax, who has inter-deposited the service tax. Taking note of the above contention Commissioner (Appeals) in the impugned order has observed as follows:- Further the case laws quoted by the appellant are not relevant to the facts of the case. It was also contended that since service provider had paid tax the tax cannot be demanded from the appellant. In this regard, I find that for any excess payment of tax by the service provider, option of Refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service from one category to another category could not have been altered at the end of recipient of service to demand service tax under some other category of taxable service. In case Bharat Hotels Ltd [2017 (50) S.T.R. 165 (Tri. - Del.)] Delhi bench has held as follows: 6. We note that the service tax for the input service has been discharged by the provider under the cleaning service which is not the listed service. We also note that the recipient of service is taking credit on such tax paid to the Government and it is not open to the recipient to reclassify the service when the tax has been paid already under a particular category by the provider of service. Neither the appellant nor the officers in the jurisdiction of the appellant have legal sanction to revise classification of service received, even if the said classification is thought to be made incorrectly by the provider of service. The correct course will be to get the classification corrected with valid basis at the source and to get the documents to that effect. We note that the invoices issued by the provider of service indicate that service tax registration under cleaning service though the description of service i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... once the service tax has been paid on a transaction the same could not have been demanded by classifying the same transaction under some other category. Zyeta Interiors Pvt Ltd. [2022 (58) GSTL 151 (Kar)] 4. Having heard the Learned Counsel for the parties and having perused the Petition Papers, this Court is inclined to grant a limited indulgence in the matter as under and for the following reasons : (a) ...... (b) There is also some force in the contention of the assessee that the entire amount due by way of tax having already reached the Exchequer, the assessee could not have been called to make the payment once over; petitioners had availed manpower services and in terms of Section 68(2) of the Finance Act, 1994, 50% of the tax due was paid by the assessee and the remaining 50% was remitted by the service provider; however, w.e.f. 20-6-2012 vide Notification No. 30/2012-S.T., this ratio was altered to 75:25 upto 1-4-2015 between the consumer the service provider; further, it was changed to 100% qua the consumer w.e.f. 1-4-2015; however, inadvertently, the Assessee continued to pay 50% and the service provider paid the remaining 50%; thus, whatever is due to ceaser has reached ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gateway Terminal (P) Ltd. vs. Commissioner of C. Ex., Cochin 2010 (20) S.T.R. 338 (Tri.-Bang.) = 2010-TIOL-1265-CESTAT-BANG and Commissioner of Service Tax, Meerut-II vs. Geeta Industries P. Ltd. 2011 (22) S.T.R. 293 (Tri.-Del.) made the same observations. 12. In this view of the matter, when the entire tax due has been deposited in the account of the Central Government though not entirely by the appellant as a service provider but also by the service recipients, it will not be possible to sustain the demand. 13. The penalties could also not, for this reason, be imposed upon the directors of the appellant. 4.8 Accordingly, we do not find any merits in the demand made by the impugned order and the same is set aside. As the demand has been set aside so is the penalty imposed. 5.1 Appeal is allowed. From the above decision, it is settled that Service Tax cannot be demanded twice, once the proper Service Tax was discharged irrespective of the payment made by any person. Therefore, we are of the clear view that since admittedly the entire Service Tax has been discharged on the supply of manpower service , no further demand exist and the same cannot be recovered. 5. Accordingly, the impu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
