TaxTMI 
TaxTMI 
2019 (6) TMI 210
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....-cause notice dated 17.10.2006 was issued to the appellant alleging that they have failed to obtain registration and pay service tax during the period 2001-02 to 31.12.2005. It was also alleged that the appellants have suppressed the value of taxable service as they did not file the statutory ST-3 returns on time. After following the due process, the Commissioner of Service Tax confirmed the demand of service tax of Rs. 42,98,625/- on the value of taxable services amounting to Rs. 5,13,72,856/- rendered during the period from 2001-02 to 2005-06 and also appropriated service tax amount of Rs. 13,97,129/- paid by them along with interest and imposed penalties under Section 76, 77 and 78. 3. Heard both the parties and perused the records. 4. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without considering the submissions and the documents of the appellant and without considering the binding judicial precedent on the same issue. He further submitted that the Commissioner vide the impugned order has simply confirmed the demand of service tax by classifying the activity of soil testing, survey and map maki....
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....ants and hence, demanding service tax again on the same service would amount to double taxation. In this regard, he referred to Trade Notice No.53/CE (Service Tax)/97 dated 4.7.1997. He also submitted that in a catena of decisions the Tribunal has held that subcontractor is not liable to pay service tax if the main contractor has paid the service tax. For this, he relied upon the following decisions: • Urvi Construction vs. CST, Ahmedabad: 2010 (17) STR 302 (Tri.-Ahmd.) • OIKOS vs. CCE, Bangalore-II : 2007 (5) STR 229 (Tri.-Bang.) • JAC Air Services Pvt. Ltd. vs. CST, Delhi: 2013 (31) STR 155 (Tri.-Del.) • Synergy Audio Visual Workshop P. Ltd. vs. CST, Bangalore: 2008 (10) STR 578 (Tri.-Bang.) • Thadi Satya Ramalinga Reddy vs. CCE, ST & Cus. Vishakpatnam-II: 2017 (4) GSTL 421 (Tri.-Hyd.) • SEMAC Pvt. Ltd. vs. CST, Bangalore: 2006 (4) STR 475 (Tri.-Bang.) 4.3 He further submitted that the Commissioner has not considered the ratios of the above said decisions but simply relied on a circular issued in 2007 which cannot be applied for the period prior to the date of the Circular whereas in the present case....
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....ion of facts will not enable the department to invoke longer period in terms of proviso to Section 73(1) of the Act. Such non-payment of service tax must be by reason of fraud or collusion or willful misstatement or suppression of facts. In support of this submission, he relied upon the following decisions: • Uniworth Textiles Ltd. vs. CCE, Raipur: 2013 (288) ELT 161 (SC) • CCE vs. H.M.M. Ltd.: 1995 (76) ELT 497 (SC) • Pushpam Pharmaceuticals Company vs. CCE, Bombay: 1995 (78) ELT 401 (SC) • Cosmic Dye Chemical vs. CCE, Bombay: 1995 (75) ELT 721 (SC) 4.6 The learned counsel further submitted that imposition of penalty simultaneously both under Section 76 and 78 is not sustainable in view fo the decision of the High Court in the case of Ravai Trading Company vs. CST: 2016 (42) STR 210 (Guj.). 5. On the other hand the learned AR defended the impugned order and submitted that the Revenue has filed the Cross Objection reiterating the findings of the impugned order. He further submitted that the Commissioner has rightly relied upon the Board Circular No.96/7/2007-ST dated 23.8.2007. He also submitted that the appellant have faile....
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....y also produced a certificate from the main contractor to the effect that service tax liability accruing on the services rendered by the appellants had already been discharged. The notice finalized in the order which confirmed the demand and also imposed penalty. In appeal the same was upheld by the Commissioner (Appeals). Aggrieved, the appellant is before the Tribunal. 2. At the time of hearing, the Ld. Counsel appearing on behalf of the appellant submitted that the issue is covered in favour of the appellant by the decision of the Tribunal passed in Final Order No. A/50882/2015-SM(BR) dated 23/03/2015. The Learned Departmental Representative was fair enough to concede the same. The Tribunal in the said judgment referring to the decision in Larson & Turbo Ltd. vs. State of Andhra Pradesh: 2006-TIOl-327-HC has observed that when service tax can be demanded either from the subcontractor or from the main contractor, when the main contractor has paid the service tax, the subcontractor is not required to pay service tax for the same services rendered. I fully concur with the view of the Tribunal laid in the above judgment and apply the same to the case in hand, the facts and ....