TaxTMI 
TaxTMI 
2011 (5) TMI 330
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....s". The Appellant had intimated this stand to the department vide their letter dated 4-11-2004 along with the bill numbers under which the said amount was received. The Appellant did not include the amount in the ST-3 return filed by them. 4. The Appellant was issued with a Show Cause Notice dated 10-3- 2006, demanding service tax amounting to Rs. 7,36,236 on the said amount of Rs. 72,17,994. In adjudication proceedings this demand was confirmed along with interest. Further a penalty equal to the said amount was imposed under section 76 of Finance Act, 1994. The Appellant filed an appeal with the Commissioner of Central Excise who confirmed the duty demand but set aside the penalty. Aggrieved by the order of the Commissioner (Appeals) the Appellant is before this Tribunal. 5. The main grounds stated in the appeal are the following : (i) The work executed by them was in their capacity as a sub-contractor and hence the Appellant is not liable to pay service tax. The Appellant relies on the following circular of CBEC and case laws in this regard : (a) CBEC Circular F. No. B-11/3/98-TRU, dated 7-10-1998. (b) BBR (India) Ltd. v. CCE [2005]....
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....as been short-levied or short-paid or erroneously refunded, the Central Excise Officer may, within one year from the relevant date, serve notice on the person chargeable with the service tax which has not been levied or paid or which has been short-levied or short-paid or the person to whom such tax refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice: Provided that where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of- (a) fraud; or (b) collusion; or (c) wilful mis-statement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Chapter or of the rules made there-under with intent to evade payment of service tax, by the person chargeable with the service tax or his agent, the provisions of this sub-section shall have effect, as if, for the words "one year", the words "five years" had been substituted. ** ** ** (6) For the purposes of this section, "relevant date" means,- (i) in the case of taxable service in respect of which ....
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....garding billing. 12. It may be appropriate to see the consequence of the interpretation canvassed by the Appellant. If an assessee raises bills for Rs. 1,00,000 in March 2004 and reports the same in the in ST-3 return for March in row 3 of item 4(A) of ST-3 and does not receive the billed amount till March 2005, no notice under section 73 can be issued because no short payment has occurred. In May 2005, if payment is received and the assessee does not pay tax, then SCN under section 73 cannot be issued because more than one year has passed after filing of return for March 2004 and consequently no tax can be demanded. Suppression also cannot be alleged since he has already reported the amount in ST-3 return of March 2004. The provisions of section 73 of Finance Act and the particulars called for in ST-3 return cannot interpreted to provide such loop holes for not paying taxes. 13. For the arguments stated above, we are not in agreement with the interpretation given by the counsel for the Appellant in the matter of time bar. So the contention that demand is time barred is rejected. 14. Now the argument that they were not the main contractors but were only sub-contractors needs to ....
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....erson availing service was specified in many of the taxable entries. For example if service provided to a customer by a telegraphic authority was taxed, the service provided by one telegraphic authority to another telegraphic authority for the former to render service to the customer was not under the tax net. Such issues came up also in the case of service provided to a client by a consulting engineer. The subcontractor who was carrying out part of the activity may not have fitted into the definition of "consulting engineer" and the consulting engineer sub-contracting the work might not have fitted into the definition of "a client". It is in such situations that the impugned clarifications were issued by the Board. The clarifications issued by Board do not expose a legal position that no sub-contractor is liable to pay service tax on any taxable activity. 15. The liability to tax has to be decided with reference to the definition the concerned taxable service at the relevant period of time and the activities carried out and the contract governing such activity. Some of the case laws quoted do not discuss any provision of any statute to come to the conclusion that there shall be n....