9911796707
TMI Blog2024 (10) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... n law. In the case of Kerala Ceramics Ltd vs CCE [ 2024 (5) TMI 868 - CESTAT BANGALORE] the Divisional Bench of CESTAT Bangalore held that ' these transporters have categorically stated that the Service Tax liability for the invoices raised on the appellant has been discharged by them and they had also mentioned their Service Tax registration number and PAN number in their certificates. As against such documentary evidences, the first appellate authority s findings as to no authentic documentary evidence has been produced, seems to be incorrect. Since the certificates clearly indicate the Service Tax registration number, the least that could have been expected from the Revenue, was to call for the details from the concerned jurisdictional Service Tax authorities. Having not done, the lower authorities cannot shift the entire blame on the appellants for having not produced any authentic documentary evidence.' Thus, the issue is settled that once 100% service tax was discharged the same cannot be recovered twice from any other person. Accordingly, in the present case also since the 100% service tax was discharged by the service provider the same service tax cannot be recovere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther submits that the appellant were being audited by the service tax authorities from time to time. Therefore there cannot be any suppression of fact on part of the appellant and extended period is not invokable. Therefore, the demand is also hit by limitation. 3. Shri Himanshu P Shrimali, Learned Superintendent (AR) appearing on behalf of the Revenue, reiterates the findings of the impugned order. 4. We have carefully considered the submissions made by both the sides and perused the records. We find that eventhough as per the statutory provision, the appellant being a service recipient is required to pay 75% of service tax under reverse charge mechanism in respect of Man Power Supply Agency Service, however undisputed fact is that 100% service tax was discharged by the service provider M/s. Kalpataru Job Management which is reflected in the invoice of the service provider. Therefore, in this position the service tax once again cannot be demanded from the appellant otherwise it will amount to recovery of the applicable service tax twice which is not permissible in law. This issue has been considered time and again. In the case of Samsung India Electronics Pvt. Ltd vs CCE 2024(4) T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provider. 4.5 Appellant, while making the payment have made the entire tax amount indicated in the invoices undisputedly. Further on the invoices the services provided are indicated as cleaning services, Assembling services etc. These services are not the services specified in the notification No 30/2012-ST and thus are not the services on which the appellant was required to discharge the tax liability under partial reverse charge mechanism. The service provider who is also registered with the Department was required to discharge the service tax liability under these category. We are of the view that invoice show the complete transactions, service tax liability has been correctly discharged in the manner as prescribed under law. It is settled law that classification of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided and is recovered from the service provider (in some cases even from the service recipient). The position is akin to Central Excise duty which is charged on manufactured goods. Just as Central Excise duty cannot be charged twice on the same goods under two separate chapters/headings/sub-headings of the Central Excise Tariff, so also Service tax cannot be charged twice on the same service (transactions). However, one service provider may provide more than one taxable service. In such cases, the service provider need only take one registration, but it shall be endorsed for all the taxable services and tax liability will have to be discharged for each of the taxable services separately. 4.7 Following decisions relied upon by the appellant also support the contention of the appellant that 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 reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -TIOL-732-CESTAT-Del] 10. The aforesaid decision of the Karnataka High Court in Zyeta Interiors emphasises that where the government received the entire amount of tax an assessee cannot be called upon to make payment even if it had deposited some portion of the tax dues and the remaining portion was deposited by the service provider. The Karnataka High Court also observed that once the tax liability has been discharged, regardless of the person who has discharged, an assessee cannot be asked to pay the tax again. 11. The Tribunal in Reliance Securities Ltd. vs. Commissioner of Service Tax, Mumbai-II 2019 (20) G.S.T.L. 265 (Tri.-Mumbai) = 2018-TIOL-1291-CESTATMUM , Angiplast Pvt. Ltd. vs. Commissioner of Service Tax, Ahmedabad 2013 (32) S.T.R. 628 (Tri.- Ahmd.) = 2013-TIOL-785-CESTAT-AHM, India 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produced, seems to be incorrect. Since the certificates clearly indicate the Service Tax registration number, the least that could have been expected from the Revenue, was to call for the details from the concerned jurisdictional Service Tax authorities. Having not done, the lower authorities cannot shift the entire blame on the appellants for having not produced any authentic documentary evidence. 9. I find that the decision of this Bench in the cases Navyug Alloys Pvt. Ltd. (supra), Mandev Tubes (supra) and Geeta Industries Pvt. Ltd. (supra) will squarely cover the issue in favour of the assessee. I also find that CBEC vide Circular dated 17-12-2004, specifically in para 5.7 stated that; If Service Tax due on transportation of a consignment has been paid or is payable by a person liable to pay Service Tax, Service Tax should not be charged for the same amount from any other person, to avoid double taxation. 8. Considering the facts and circumstances of the case, and the decisions of the Tribunal the appeal is allowed with consequential relief, if any in accordance with law. The identical issue has also been considered by Hon ble Karnataka High Court in the case of Zyeta Interiors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tended to the realm of service tax w.e.f. 28.05.2012; the object of the Settlement Machinery is to provide reprieve if not relief to the tax evaders so that, tax dues are settled by way of speedy settlement; in Krishnan Vs. Settlement Commission 1989(180) ITR 585 (KAR) it is observed that the Settlement Commission was to be constituted for settling complicated claims of chronic tax evaders as an extraordinary measure, for giving an opportunity to such persons to make a true confession and to have matters settled once for all and earn peace of mind; the Settlement Commission has to keep in mind the recommendation of The Wanchoo Committee that if the tax payer takes the initiative and voluntarily discloses the facts of his alleged deviations to their full extent, he should not be subjected to criminal proceedings and that pecuniary settlement should put the matter to rest. d) The CBEC Circular has the following relevant part: If service tax due on transportation of a consignment has been paid or is payable by a person liable to pay service tax, service tax should not be charged for the same amount from any other person, to avoid double taxation The High Courts of Bombay, Gujrat and P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Alloys Pvt. Ltd. vs. CCE: 2009 (13) STR 421 (Tri.-Ahmd.) Umasons Auto Compo Pvt. Ltd. vs. CCE: 2017 (47) STR 377 (Tri.-Mum.) Mandev Tubes vs. CCE: 2009 (16) STR 724 (Tri.-Ahmd.) 5. On the other hand, the learned AR reiterated the findings of the impugned order. 6. After considering the submissions of both the parties and perusal of the decisions cited by the appellant, I am of the opinion that once the entire service tax has been paid by the service provider and the appellant has paid the share of 75% of the service tax to the service provider, there remains no tax due to the Government. Further, I find that the decisions relied upon by the appellant are squarely applicable in the present case and therefore, by following the ratio of the above said decision, I am of the view that the impugned order is not sustainable in law and the same is set aside by allowing the appeal of the appellant. In view of the above judgments and other judgments cited by the Learned Counsel issue is settled that once 100% service tax was discharged the same cannot be recovered twice from any other person. 5. Accordingly, in the present case also since the 100% service tax was discharged by the service pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
