9911796707
TMI Blog2025 (4) TMI 1117X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner would be found entitled under the facts and circumstances of the case." Brief facts of the case 2. The petitioner is a private limited company registered under the Companies Act having its head office/registered office at Patna in the State of Bihar. It is carrying on business of construction of efficient and reliable power substation and electrical transmission and distribution systems. The petitioner claims that it is often engaged in power construction works as a subcontractor on behalf of the primary contractors. It is stated that the petitioner-company has obtained all necessary licences and permissions from the State and local authorities according to the applicable laws. 3. According to the petitioner, one M/s Powertech Engineers (respondent no. 4), having its registered office at Rajnagar in Ghaziabad in the State of Uttar Pradesh and M/s Kanti Prasad Mittal (respondent no. 5) having its head office at Meerut in the State of Uttar Pradesh on 25.05.2015 received a work order from the Bihar State Power Transmission Company Limited, Patna (in short 'BSPTCL'). A copy of the work order has been placed on record as Annexure 'P/1' to the writ application. 4. The petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dum to this effect was issued on 07.11.2023 by the Principal Commissioner, Central GST and CX, Patna i.e. the show cause notice issuing authority. 7. The petitioner-company was granted an opportunity of personal hearing on 22.11.2023 in response to which the authorized representative of the petitioner appeared and sought time to present his case which was also granted. The respondent authorities of the department, however, found that the representative of the petitioner did not produce the copies of the work orders, VAT returns, etc. to show that the income accrued under Section 194C of 26AS statement pertains to work done for the principal contractor as claimed by him. The representative of the petitioner claimed that in the work order, it is clearly mentioned that the liability is to be borne by the principal contractor in the case and on this ground adjournment was sought for which was also granted. The petitioner-company submitted documents in relation to respondent no. 4 viz. the contract, work order and the service tax payment challans borne by them for the relevant period but the petitioner could not submit the full documents for the other vendor M/s Kanti Prasad Mittal. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, as amended, read with Section 174 of the CGST Act, 2017 penalty of Rs. 10,000/- under Section 77 (1) (a) of the Act and a penalty of Rs. 10,000/- under Section 77 (1) (c) of the Act have been imposed ignoring the submission of the petitioner that the primary contractor has paid the service tax pertaining to the work order by the BSPTCL. 10. A counter affidavit has been filed on behalf of the respondent nos. 1, 2 and 3 sworn by the Assistant Commissioner, CGST and CX, Patna (Central Division). At the outset, a plea has been raised that the petitioner has moved this Court under Article 226 of the Constitution of India without exhausting an equally efficacious alternative statutory remedy of appeal available under the CGST Act, 2017. Learned ASG representing the department has relied upon the judgment of the Hon'ble Supreme Court in the matter of Assistant Collector of Central Excise, West Bengal vs. Dunlop India Limited and Ors. reported in (1985) 1 SCC 260:AIR 1985 SC 330. Further reliance has also been placed on the judgment in the case of Tata Engineering and Locomotive Company Limited vs. Assistant Commissioner of Commercial Taxes and Anr. reported in AIR 1967 SC 1401. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s upon perusal of the details of the challans of service tax payments made by respondent no. 4 and respondent no. 5 found that those were the payments of mixed up liabilities on account of works contract services, legal consultancy services, and GTA services including Krishi Kalyan Cess and Swachchh Bharat Cess and the head-wise payments have been discussed in paragraph '4.4' of the impugned order. The petitioner-company failed to establish that the due service tax has been paid to the government exchequer. 13. Learned ASG submits that in the facts of the present case, it would not be appropriate to exercise the extraordinary writ jurisdiction of this Court even as the case in question would not require any interference with the impugned order, leaving it open to the petitioner to seek his remedy in appeal in accordance with law. Consideration 14. We have heard learned counsel for the petitioner and learned ASG for the respondent nos. 1 to 3. In the present case, admittedly the petitioner has a remedy available under Section 35 (ख) of the Central Excise Act, 1944 read with Section 86 of the Finance Act, 1994. The appeal is required to be filed within a period of three mont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e impugned order. We reproduce paragraph '4.5' of the impugned order as under:- "4.5 From the above, it is found that Grand total of Service Tax claimed to be paid comes to Rs. 1,03,16,628/- whereas the noticee vide its letter dated 09.01.2024 has submitted that an amount of Rs. 82,75,288/- has been paid by the referred two Primary/Principal Contractors. Thus, I find that the submissions of the noticee and corresponding tax payment challans are contradictory and bad in taste too. Further, the noticee has also submitted Certificates dated 18.06.2019 & 12.09.2017 from M/s Powertech Engineers & M/s Kanti Prasad Mittal to the effect that they have paid Service Tax amounting to Rs. 60,39,674/- and Rs. 29,20,335/- respectively which is also not in the line with the noticee's letter dated 09.01.2024 wherein he has stated that Service Tax amounting to Rs. 82,75,288/- has been paid by the duo. Thus, I find that the noticee has miserably failed to establish that due Service Tax has been paid to the Government Exchequer. Besides, the noticee in its above referred letter has also declared that Service Tax amounting to Rs. 1,03,44,112/- has been deducted by M/s BSPTCL (original service recipi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " 18. We have gone through the judgments of the Hon'ble Andhra Pradesh High Court in the case of Larsen and Toubro Limited (supra) and the Hon'ble Supreme Court in the case of Larsen and Toubro Ltd. (supra). The distinguishable feature of the said judgment may be noticed from the fact that in the said case, the question which fell for consideration before the High Court was as to whether the goods utilised by a contractor in the execution of a building contract (one of the categories of the works contracts) could legitimately be made exigible to the sales tax in exercise of the legislative competency under entry 48 of the List II of the Seventh Schedule to the Government of India Act, 1935 (which corresponds to the present entry 54 of the List II of the Seventh Schedule to the Constitution of India). It was the case of the petitioners that the amount of tax paid by the subcontractors must be given credit to while computing the tax liability of the first petitioner on the turnover relating to a particular contract or a set of contracts executed during a specified period relevant for the assessment under the VAT Act. The Hon'ble High Court noticed that neither the Act nor the Rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8' of the impugned order which we reproduce as under: "4.8 Further, Hon'ble Tribunal in the case of Larsen & Toubro Limited Vs. Commissioner of Central Excise, Raipur, reported in 2019 (26) G.S.T.L. 83 (Tri. - Del.), wherein in para 16 held as under: "16. As a result of entire above discussion, we are of the firm opinion that the liability which has been discharged by M/s. Larsen and Toubro is on the gross value of the entire project. Appellant being one of the service provider admittedly, providing taxable services to Larsen & Toubro and receiving the service charges from them cannot get absolve his liability towards Service Tax under the pretext of discharge being made by the service recipient. Otherwise also, service tax is to be deposited to the Govt., not by the recipient but by the provider, who is the appellant in the present case." 20. The discussions and the findings recorded in the impugned order, in our considered opinion, are wholly in accordance with law. The petitioner is not able to make out a case for interference with the impugned judgment/order. 21. In ultimate analysis, we find no merit in the writ application. It is dismissed accordingly. Ramesh Chand M ..... X X X X Extracts X X X X X X X X Extracts X X X X
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