2025 (12) TMI 224 - AT - Service Tax

Service tax demand on sub-contractor quashed as extended limitation fails for lack of suppression and bona fide belief

Sree Nandhees Technologies Pvt. Ltd. Versus Commissioner of GST & Central Excise, Chennai

The CESTAT allowed the appeal of the sub-contractor and set aside the demand of service tax, interest and penalties. While acknowledging the Larger Bench ... Liability of sub-contractor to pay service tax - Maintenance or Repair Service - Principal has already discharged the relevant service tax - expression “to a customer” in Section 65(105)(zzg) of the Finance Act, 1994, was replaced by “to any person” only with effect from 16.05.2008 - whether the activity of the appellant, during the period from 2004–05 to 2006–07, for having provided services to the Principal and not ‘to a customer’, was classifiable under the said section? - HELD THAT:- A Larger Bench of this Tribunal in COMMR. OF S.T., NEW DELHI Vs MELANGE DEVELOPERS PRIVATE LTD. [2019 (6) TMI 518 - CESTAT NEW DELHI-LB], had examined the issue of duty payable by sub-contractors for services rendered to the Principal. It had also examined the practice being followed prior to the issue of Master Circular No 96/7/2007-ST, dated 23-8-2007 and held that 'A sub-contractor would be liable to pay Service Tax even if the main contractor has discharged Service Tax liability on the activity undertaken by the sub-contractor in pursuance of the contract.' Hence while the issue on merits, that the sub-contractor would be liable to pay Service Tax even if the main contractor has discharged Service Tax liability, has been settled by the Order of the Larger Bench of this Tribunal in MELANGE DEVELOPERS - there is nothing in the SCN that shows that there was any intent on the part of the appellant to evade duty. Not indicating the income in the ST3 return as a result of the prevailing practice and the appellants understanding of law does not in itself show an intention to evade payment of duty. It is not proposed to examine the dispute regarding the exigibility of the service rendered by the appellant to tax prior to 16.05.2008, when the expression “to a customer” in Section 65(105)(zzg) of the Finance Act, 1994, was replaced by “to any person”. As regards the proof sought from the appellant by revenue to show that the principal contractor had also provided the same service, it is found that the letter of the Principal dated 25.09.2009, has not been disproved by revenue. In any case the point gets subsumed in the larger issue of time bar, resulting from the prevailing practice due to the divergent interpretation of law and lack of evidence in the SCN to demonstrate any intent on the part of the appellant to evade duty. The impugned order is set aside - appeal allowed. 1. ISSUES PRESENTED AND CONSIDERED 1. Whether a sub-contractor is liable to pay service tax even when the main contractor has discharged service tax on the same taxable service. 2. Whether the demand of service tax for the period 2004-05 to 2006-07 is barred by limitation, and consequently whether invocation of the extended period under Section 73 of the Finance Act, 1994 and imposition of penalty under Section 78 are sustainable. 3. Whether it was necessary or permissible for the Tribunal to decide the merits of taxability once the demand was held to be time barred. 2. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Liability of sub-contractor to service tax when main contractor has paid Legal framework (as discussed): 1. The Tribunal referred to the Larger Bench decision interpreting service tax liability of sub-contractors, and to the Master Circular No. 96/7/2007-ST dated 23.08.2007, which superseded earlier circulars and clarified taxability of services provided by sub-contractors. Interpretation and reasoning: 2. The Larger Bench decision examined earlier Trade Notices/Instructions that had, prior to 2007, exempted certain categories of sub-contractors (e.g., Customs House Agents, architects, interior decorators) from payment of service tax where the principal had paid the tax, and noted that these were superseded by the Master Circular. 3. The Master Circular clarified that a sub-contractor is 'essentially a taxable service provider', and that services provided by sub-contractors are in the nature of input services; service tax is leviable on any taxable service provided by a sub-contractor, regardless of whether the service is used as input by another service provider and regardless of tax paid by the main contractor. 4. The Larger Bench, after considering this legal position, held that a sub-contractor is liable to pay service tax even if the main contractor has discharged tax on the activity undertaken by the sub-contractor. Conclusions: 5. The Tribunal accepted that, on merits, the issue of sub-contractor liability stands settled by the Larger Bench holding that a sub-contractor is liable to pay service tax even if the main contractor has paid service tax on the same activity. 6. However, given the finding that the demand in the present case is time barred (Issue 2), the Tribunal declined to proceed further on the merits of taxability for the period in dispute. Issue 2 - Limitation, extended period, and sustainability of demand and penalty Legal framework (as discussed): 7. The dispute concerned demand of service tax for 2004-05 to 2006-07, with show cause notice issued on 25.08.2009, beyond the normal period of one year under Section 73 of the Finance Act, 1994. 8. The Tribunal relied on the principles laid down by the Supreme Court in Cosmic Dye Chemical on the construction of the extended period under the proviso to Section 11A of the Central Excise Act, 1944, which is identical to Section 73 of the Finance Act, 1994, regarding 'fraud, collusion, wilful misstatement, suppression of facts or contravention with intent to evade duty'. Interpretation and reasoning: 9. The appellant was a registered service provider for 'Maintenance or Repair Service' and was regularly filing ST-3 returns; there was no allegation in the show cause notice evidencing any intent to evade duty. 10. Prior to 23.08.2007, several Board Circulars/Trade Notices had clarified that certain sub-contractors need not pay service tax when the principal had paid tax (e.g., FAQs on Maintenance and Repair Service, Customs House Agents, Rent-a-Cab operators, architects/interior decorators). These clarifications were only reversed/superseded by the Master Circular dated 23.08.2007. 11. The Tribunal noted that this history reflected an 'ambiguity in the understanding of law' regarding liability of sub-contractors prior to the Master Circular; further, even in later case law (e.g., the cited decision in Sunil Hi-Tech Engineers), there had been divergent views within the Tribunal requiring reference to a third Member, evidencing interpretational uncertainty. 12. The Tribunal held that mere non-reflection of the disputed income in ST-3 returns, when based on the then-prevailing practice and bona fide understanding guided by existing circulars, does not constitute wilful suppression or misstatement with intent to evade duty. 13. Applying the Supreme Court's reasoning in Cosmic Dye Chemical, the Tribunal held that 'misstatement or suppression of facts' must be wilful and with intent to evade duty; in the absence of such intent, the extended period cannot be validly invoked. 14. As the show cause notice was issued after the expiry of the normal period, and there was no material indicating fraud, collusion, wilful misstatement, wilful suppression of facts or contravention with intent to evade payment of duty, the pre-conditions for invoking the extended period under Section 73 were not satisfied. Conclusions: 15. The demand of service tax for the period 2004-05 to 2006-07, raised vide show cause notice dated 25.08.2009, was held to be barred by limitation. 16. Consequently, the interest and penalty, including penalty under Section 78 of the Finance Act, 1994, were also unsustainable. 17. On this ground alone, the impugned order was set aside and the appeal allowed, with consequential relief as per law. Issue 3 - Necessity to decide merits when demand is time barred Legal framework (as discussed): 18. The Tribunal referred to judicial precedents holding that where a demand or complaint is barred by limitation, adjudicating authorities or tribunals should not proceed to decide the case on merits: * A High Court decision holding that once the demand is held time barred, there is no occasion for the Tribunal to enquire into the merits of issues raised by the Revenue. * The Supreme Court decision in State Bank of India v. B.S. Agricultural Industries (I), holding that deciding on merits a complaint that is barred by time constitutes an illegality. * The Supreme Court decision in Commissioner of Customs, Mumbai v. B.V. Jewels, holding that if the appellate tribunal finds the action time barred, it should dispose of the appeal only on that ground without examining merits. Interpretation and reasoning: 19. Having independently concluded that the demand was time barred and that the extended period could not be invoked, the Tribunal considered itself guided by the above authorities not to adjudicate on substantive taxability issues once the limitation issue was dispositive. 20. In this context, the Tribunal specifically declined to decide the dispute regarding the taxability of services rendered prior to 16.05.2008, arising from the change in the wording of Section 65(105)(zzg) from 'to a customer' to 'to any person'. 21. The Tribunal also noted that any controversy regarding proof that the principal contractor had provided and paid tax on the same service was rendered academic in view of the finding on limitation. Conclusions: 22. Once the demand was held to be time barred, the Tribunal held that it was neither necessary nor proper to examine or decide the merits of the taxability of the services rendered by the appellant, including the effect of the amendment substituting 'to a customer' with 'to any person'. 23. On this basis, the appeal was allowed purely on limitation, and the impugned order was set aside without adjudicating further on substantive tax liability for the period in question.