TaxTMI 
TaxTMI 
2018 (6) TMI 805
X X X X Extracts X X X X
X X X X Extracts X X X X
.... respect of commercial or industrial buildings and civil structures, "construction of residential complex", "maintenance or repair service" and "works contract service". The revenue has carried out an investigation and it was revealed that the respondent had belatedly filed ST-3 return for the period 2005- 06 to 2009-10, the payment of service tax too was made after considerable delay along with interest. They had paid service tax totally amounting to Rs. 4,36,08,868 for the period 2005-06 to 2009-10 out of which payment of service tax amounting to Rs. 3,83,37,074 was made after the due date, therefore the respondent had paid interest total amounting to Rs. 42,01,801/- towards the delay. It was further noticed that the amount of receipt sho....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er was dropped, the Ld. Commissioner also dropped penalty under section 76, 77 and 78 invoking section 80 of Finance Act, 1994. 3. Being aggrieved by the part of the said impugned order the revenue filed the present appeal seeking confirmation of demand of Service Tax amounting to Rs. 98,40,877/- which was not Paid by the respondent on the ground that the said amount of Service Tax related to the service provided by the sub-contractor who already paid the service tax. The revenue also seek to impose penalty under section 76, 77 or section 78 of Finance Act, 1994. 4. Shri M. Suresh Ld. Deputy Commissioner (AR) reiterating the grounds of appeal submits that as regard the Service Tax amount Rs. 98,40,877/- dropped by the commissioner is ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....even though the payment of service tax was made prior to Show Cause Notice, the penalty cannot be waived as held by the Punjab & Haryana High court in the case CCE Delhi Vs Machino Montell (2006 (4) STR 177) P&H HC. He also placed reliance on the judgment of this tribunal in the case Sunil HITech Ltd. Vs CCE, Nagpur (2014 (36) STR 408) Tri-Mum. 5. Shri Jagdish Gawde Ld. Consultant appearing on behalf of the Respondent Submits that the learned commissioner has rightly dropped the demand on the service provided by sub-contractor. If the respondent is demanded Service Tax on such service which was provided by the subcontractor in that case it will be double taxation on the same service which is not permitted under the law. He further submit....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of service tax. We observed that if the contention of the commissioner is accepted on the point that since sub-contractor paid the service tax then the respondent being main contractor is not required to pay the service tax. It will create a situation where every service provider may avoid to pay the service tax on the output service to the extent it is attributed to their input service, therefore we reject the proposition made by the Ld. Commissioner. However the service tax paid by subcontractor shall be eligible as Cenvat Credit to the respondent, to that extent of the liability of service tax shall stand reduced in the hands of the respondent. However it is only possible once the admissibility of Cenvat Credit is tested on the count whe....