TaxTMI 
TaxTMI 
2021 (8) TMI 1117
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....ard to the submissions so made by the learned Counsel on either side, this Court directs the 1st respondent to dispose of the appeal filed by the petitioner, on merits and in accordance with law, after affording due opportunity of personal hearing to the petitioner, within a period of six weeks from the date of receipt of a copy of this order. 6. This writ petition stands disposed of accordingly. Consequently, connected miscellaneous petition is closed. No costs." 2.1 Brief facts of the case are that the appellant is engaged in providing various services. On intelligence gathered that the appellant did not discharge Service Tax liability for the services rendered under the category of "Cargo Handling Services", summons was issued to the appellant. The appellant stated that they provided Cargo Handling Services only to M/s. Aspinwall and Company Ltd. (hereinafter referred to as 'M/s. ACL') and that the said company had discharged Service Tax liability in full and informed the same to the appellant. The scope of work of the appellant was restricted to transport of imported goods from the port area to godown and transport of goods from the place of exporter to port area an....
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....e Service Tax. That there was no wilful intention to evade payment of Service Tax. Further, even if the appellant discharged Service Tax, M/s. ACL, being the main service provider, would be eligible for credit and thus the situation is fully revenue neutral. 3.2.2 Further, the issue being purely an interpretational one, the invocation of extended period is without basis. There were several litigations during the said period wherein the question was as to whether sub-contractors are liable to pay Service Tax when the main contractor has discharged the Service Tax liability. The Tribunal in the case of M/s. Semac Pvt. Ltd. v. Commissioner of Service Tax, Bangalore reported in 2006 (4) S.T.R. 475 (Tri. - Bang.) held that the sub-contractor is not liable to pay Service Tax when the main contractor paid tax on the full value of the consideration. A similar view was taken in Commissioner of Customs & Central Excise, Indore v. M/s. Shivhare Roadlines reported in 2009 (16) S.T.R. 335 (Tri. - Del.) and M/s. Urvi Construction v. Commissioner of Service Tax, Ahmedabad reported in 2010 (17) S.T.R. 302 (Tri. - Ahmd.). There were conflicting views taken by different fora and the matter was al....
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....ded by us. The storage charges of Rs. 15,14,269.25 included in above for handling of Wheat which is exempted from Service tax.. Per Pro Aspinwall & Co. Ltd." 7. Although the Department was directed to verify and submit as to whether the main contractor had discharged the Service Tax on these services, the Learned Authorized Representative for the Department submits that inspite of sending letters with the above query, they have not received any reply from the concerned Commissionerate. 8.1 It is seen that the amount received from the clients have been subjected to Service Tax at the hands of the main contractor. However, since the appellant, as a sub-contractor, has provided services to the main contractor, is liable to discharge Service Tax on the consideration received from the main contractor namely, M/s. ACL. As correctly submitted by the Learned Authorized Representative for the Department, the main contractor would then be eligible to take credit of such Service Tax paid by the appellant as these are input services for the main contractor. This issue is no longer res integra and is settled by the decision of the Larger Bench of the Tribunal in the case of Commr....
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....rious fora. In the decisions of M/s. Semac Pvt. Ltd. (supra), M/s. Shivhare Roadlines (supra) and M/s. Urvi Construction (supra), the Tribunal had held that sub-contractors are not liable to pay Service Tax. There were conflicting views and the issue was referred to Larger Bench. In M/s. Max Logistics Ltd. v. Commissioner of Central Excise, Jaipur reported in 2017 (47) S.T.R. 41 (Tri. - Del.), the question as to whether extended period of limitation can be invoked on the above issue has been analysed as below: "11. Considering the above discussion and analysis the service tax liability on the appellant cannot be contested as invalid. We uphold the findings in the impugned order regarding tax liability. However, the appellants contested the demand on the question of time bar also. It is their case that the full amount collected by RSIC from the importers and exports has been subjected to service tax. Even if the appellant is held liable on their share of Revenue received from RSIC the said tax is eligible for credit to RSIC. Further, the issue involved is interpretation of law and there is no intend to evade payment of duty in such situation. The appellants relied on ....
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....demand against the appellant was sought to be confirmed mainly on the basis of the terms of agreement between the appellant and RSIC. The gross receipt of RSIC and service tax payment thereupon is available with the Department. A portion of that receipt is now being taxed under BIS at the hands of the appellant. The service tax liability is as such on the arrangement based on agreement which is also the basis for payment of full service tax by RSIC. In other words, the service tax liability of both RSIC and the appellant has common source agreement. As such, we find the demand for extended period is not sustainable in the present case." 9.2.1 On perusal of the Show Cause Notice, there is no positive act of wilful suppression/mis-statement alleged on the part of the assessee. In the last part of paragraph 3 of the Show Cause Notice, it is merely stated as under: "...As the non payment / non-registration came to the notice of the department only after gathering intelligence and discreet investigation conducted by the head quarters preventive unit, it appears that extended period of limitation is applicable to the facts of the case for recovery of service tax." 9.2.2 Ev....