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of <h1>Sub-contractor liable for service tax despite main contractor paying on gross value, penalties set aside due to regular filing</h1> <h3>M/s. M.A. Enterprise Versus Commissioner of Central Excise and Service Tax, Kolkata</h3> The CESTAT Kolkata held that a sub-contractor remains liable to pay service tax even when the main contractor discharges tax on gross value, following ... Liability of sub-contractor to pay service tax - main contractor discharges tax on the gross value - Extended period of limitation - suppression of facts or not - penalties - HELD THAT:- After issue of the Circular No. 96/7/2007-S.T. dated 23.08.2007, there is no ambiguity regarding the liability of a sub-contractor to pay Service Tax even in cases where the main contractor pays Service Tax on the gross value. The demand involved in this Notice pertains to the period from 2007-08 to 2011-12 i.e., after the issue of the Circular mentioned hereinabove. Thus, the submission of the appellant that they were not aware of the liability to Service Tax as a sub-contractor, is not agreed upon. The Larger Bench of the Tribunal in the case of Commissioner of Service Tax v. M/s. Melange Developers Pvt. Ltd. [2019 (6) TMI 518 - CESTAT NEW DELHI-LB] has decided that even when the main contractor has discharged Service Tax, the sub-contractor is required to pay Service. In view of the decision of the Larger Bench and by relying on the Board Circular, it is held that the sub-contractor is liable to pay Service Tax even if the main contractor pays Service Tax on the gross value of the services. Extended period of limitation - suppression of facts or not - penalties - HELD THAT:- The appellant has been filing their returns regularly, thereby intimating the liability to Service Tax. Thus, no suppression of facts with intention to evade payment of tax exists in this case - the extended period of limitation cannot be invoked against the appellant. For the same reason, the penalties imposed on the appellant are set aside. Appeal disposed off. 1. ISSUES PRESENTED AND CONSIDERED 1. Whether a sub-contractor is liable to pay Service Tax on services rendered to the main contractor when the main contractor has discharged Service Tax on the gross contract value. 2. Whether the demand for Service Tax for the period 2007-08 to 2011-12, raised by a Show Cause Notice dated 08.10.2012, is barred by limitation and whether the extended period of limitation is invocable where there is no suppression or mala fide intention. 3. Whether penalties under the Finance Act are sustainable where the extended period of limitation cannot be invoked and there is no evidence of suppression or intention to evade tax. 2. ISSUE-WISE DETAILED ANALYSIS Issue 1: Liability of sub-contractor to pay Service Tax when main contractor pays on gross value Legal framework: Service Tax law and Board/Departmental clarifications govern taxability of services rendered by sub-contractors. The Master Circular No. 96/7/2007-S.T. (dated 23.08.2007) addresses the liability of sub-contractors and clarifies that services provided by sub-contractors are taxable even if used as input services by the main service provider. Precedent Treatment: The Tribunal's Larger Bench has ruled that a sub-contractor is liable to pay Service Tax even where the main contractor has discharged Service Tax on the entire contract value. Subsequent Tribunal decisions have followed that Larger Bench view, resolving earlier conflicts in favor of sub-contractor liability. Interpretation and reasoning: The Circular explicitly states that a sub-contractor is a taxable service provider and that the use of such services as input by the main contractor does not alter the taxability. The Tribunal notes the absence of any ambiguity after issuance of the Master Circular and finds the Circular determinative of the legal position for the relevant period. Reliance is placed on consistent Tribunal decisions applying the Larger Bench ratio. Ratio vs. Obiter: Ratio - the legal proposition that sub-contractors remain independently liable to pay Service Tax regardless of the main contractor's discharge of tax on the contract value is treated as binding and determinative for the matter before the Tribunal. The references to prior cases and the Circular serve as binding guidance rather than mere observation. Conclusions: The sub-contractor is liable to pay Service Tax on services provided to the main contractor even where the main contractor has paid Service Tax on the gross value of the contract. The appellant's bona fide belief that no separate tax liability arose is not sufficient to negate statutory and circularly clarified obligations for the period after issuance of the Circular. Issue 2: Limitation - invocability of extended period where no suppression or mala fide intention is shown Legal framework: Limitation in tax demands includes a normal period (one year) and an extended period that can be invoked where suppression of facts or fraud is shown. The burden to invoke the extended period lies on the Department to establish suppression or willful evasion. Precedent Treatment: Tribunal practice and legal principles require demonstrable suppression or intention to evade tax before the extended period can be lawfully invoked. Filing of returns and disclosure of relevant transactions militates against findings of suppression. Interpretation and reasoning: The Show Cause Notice was issued beyond the normal one-year period for the years in question. The appellant had (a) filed Service Tax returns regularly, and (b) communicated to the Department (by letter dated 21.11.2011) that invoices to the main contractor were raised without charging Service Tax. The Department did not adduce evidence of suppression of facts or mala fide intent. On these facts, the Tribunal finds no basis to invoke the extended period. Ratio vs. Obiter: Ratio - the extended period of limitation cannot be invoked in the absence of evidence of suppression or intention to evade tax; regular filing of returns and prior communication to the Department negate suppression. This conclusion determines the legality of raising demand for the extended period in the present case. Conclusions: The demand raised by invoking the extended period of limitation is set aside because there is no evidence of suppression or mala fide intention. The appellant's prior disclosure and regular returns preclude reliance on the extended limitation period. Issue 3: Penalties where extended period is not invocable and no suppression found Legal framework: Penalties under the Finance Act may be imposed for contraventions, including for wilful suppression or fraudulent conduct; equity and statutory provisions limit penalty where there is no culpable suppression. Invocation of enhanced penalties often correlates with findings that justify the extended limitation period. Precedent Treatment: Tribunal practice extinguishes penalties where the foundational facts supporting enhanced liability (such as suppression warranting extended limitation) are absent. Penalty imposition is therefore contingent on an established default or mens rea as per statutory requirements and jurisprudence. Interpretation and reasoning: Because the Tribunal finds no suppression and holds that the extended period cannot be invoked, the factual foundation for penalties imposed under Sections 77(b), 77(e) and Section 78 (as applied in the impugned order) is undermined. The Tribunal accordingly concludes that penalties cannot be sustained. Ratio vs. Obiter: Ratio - where the extended period is inapplicable for lack of suppression, penalties premised on misconduct or concealment are not sustainable. This holding is determinative for penalty relief in the case. Conclusions: Penalties imposed against the appellant are set aside. The appellant remains liable to pay Service Tax for the normal (one-year) limitation period, along with interest, but not the demand raised for the extended period nor the penalties tied to suppression-based findings. Cross-references For Issue 1 and Issue 2: The liability of the sub-contractor (Issue 1) is independent of limitation analysis (Issue 2). Even though the sub-contractor is liable for tax for periods within the normal limitation period, demands for periods beyond the normal period cannot be sustained absent suppression. Thus liability and limitation operate conjunctively to define recoverable tax exposure. For Issue 2 and Issue 3: The absence of suppression defeats both the extended limitation period and the penalty regime premised on concealment; hence findings on limitation directly inform the outcome on penalties.
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