2017 (7) TMI 345 - AT - Service Tax

Tribunal upholds Service Tax demand, penalties for normal period, sets aside penalties under Section 78.

Commissioner of Central Excise, Bolpur Versus M/s. J.D. Enterprises

The Tribunal upheld the demand of Service Tax and penalties for the normal period but set aside penalties under Section 78 and the demand for the extended ... Sub-contract - tax liability - the respondent failed to produce any evidence that the main contractor discharged the tax liabilities - Held that: - Circular No.96/7/2007-S.T. dated 23.8.2007, with reference to Code 999.03/23.08.2007, it is clarified that a sub-contractor is essentially a taxable service provider. The fact that services provided by such sub-contractors are used by the main service provider for completion of his work does not in any way alter the fact of provision of taxable service by the sub-contractor. Services provided by the sub-contractors are in the nature of input services - Service Tax is, therefore, leviable on any taxable services provided, whether or not the services are provided by a person in his capacity as a sub-contractor and whether or not such services are used as input services - demand upheld - matter is remanded to the Adjudicating Authority to re-determine the quantum of demand, interest and penalty u/s 76 of the Act for the normal period of limitation - appeal allowed by way of remand. Issues:1. Demand of Service Tax for maintenance and repair services.2. Imposition of penalties under Sections 76, 78, 77(1) & 77(2) of the Finance Act, 1994.3. Interpretation of Circulars related to tax liability of sub-contractors.4. Application of extended period of limitation for tax evasion.Analysis:1. The respondent was engaged in providing maintenance and repair services and faced a Show Cause Notice for alleged non-payment of proper Service Tax. The Adjudicating Authority confirmed the demand of Service Tax, interest, and penalties under relevant sections of the Finance Act, 1994. The Commissioner(Appeals) modified the demand considering payments made by a sub-contractor and calculation errors, leading to the appeal by the Revenue.2. The Appellate Tribunal heard arguments from both sides. The Appellant-Revenue contended that the respondent failed to prove that the main contractor settled tax liabilities, invoking a Tribunal decision and a circular for extended limitation. The respondent's counsel argued against this, citing contradictory circulars and providing a declaration from the main contractor about tax payment.3. The Tribunal referred to Circular No.96/7/2007-S.T., clarifying the tax liability of sub-contractors as taxable service providers. It emphasized that services provided by sub-contractors are taxable, regardless of their use as input services by main service providers. The Tribunal agreed with the Revenue's stance, noting the respondent's reliance on outdated circulars and acknowledging the clarification provided in the 2007 circular.4. Considering the facts presented and the legal position clarified in the circular, the Tribunal upheld the demand of Service Tax and penalties for the normal period but set aside the penalties under Section 78 and the demand for the extended period. It ruled out the invocation of the extended period of limitation due to no intent to evade tax, and remanded the matter to re-determine the quantum of demand, interest, and penalty for the normal period.In conclusion, the appeal by the Revenue was partly allowed, and the matter was remanded for further assessment in accordance with the law.