2011 (3) TMI 217

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....n ble High Court by order dated 22.9.2010, which was passed in Central Excise Appeal No. 10/2010 filed by the assessee and Central Excise Appeal No. 11/2010 filed by the department. The Hon ble High Court ordered remand in the following terms.   By consent the order of the Customs Excise & Service Tax Appellate Tribunal, Mumbai dated 28.8.2009 is quashed and set aside and the matters are remanded back to the Customs Excise & Service Tax Appellate Tribunal to decide the two issues afresh in accordance with law; namely, (i) whether the assessee has produced documentary evidence so as to hold that the assessee was entitled to the benefits of various circulars wherein it is held that a sub-contractor is not liable to pay service tax if ....

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.... Counsel proposes to file a compilation of invoices issued by the appellant to their client namely NTPC. He is ready with this compilation, which we have taken on record and perused. The learned counsel submits that this is a compilation of all the invoices issued by the appellant to NTPC for the period of dispute. The learned SDR submits that these documents were not produced by the appellant in the earlier round. The learned counsel has no quarrel with this submission of the learned SDR.   3. From the original records of this case coupled with the Hon ble High Court s remand order, it appears to us that neither side chose to honestly inform their lordships that the documentary evidence available on record had been duly considered ....

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.... liable to pay service tax where the main contractor paid such tax on the same service for the same period. Prima facie the said circulars favoured the appellant. The learned Commissioner, without considering those circulars laid his hands on the circular dated 23.8.2007, which clarified that the sub-contractor was also liable to pay service tax irrespective of any payment of such tax by the main contractor. It appears, the learned Commissioner considered the circular dated 23.8.2007 to be of retrospective operation to cover the period of dispute in this case. One of the contentions which apparently escaped the attention of the learned Commissioner was that an oppressive circular should be given only prospective effect and that the benefit ....