TaxTMI 
TaxTMI 
TaxTMI 
2023 (7) TMI 362
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....e audit team from 02.04.2007 to 03.04.2007 for the period 2004-05, 2005-06 upto 30.09.2006 and raised objection that the appellant is liable to pay service tax on the services rendered by them to the main contractors. The stand of the appellant was that in view of the trade notices issued by the department they were not liable to pay service tax. The appellant also submitted letters received from the main contractor showing that the service tax has been paid by the main contractor on the activity undertaken by the sub contractor in pursuance of the contract. Thereafter, the show cause notice dated 25.03.2009 was issued to the appellant demanding service tax amounting to Rs. 59,69,183/- besides interests and penalty by invoking the extended period of limitation. After following the due process the adjudicating authority confirmed the demand of Rs. 54,16,682/- after giving cum duty benefit and imposed penalty under Section 76, 78 and demanded interest under Section 75. Aggrieved by the said order, the appellant has filed the present appeal. 3. Heard both the parties and perused the record. 4. Ld. Counsel for the appellant submitted that the impugned order is not sustainable in law ....
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....nnai). 6. On the other hand, Ld. DR supported the findings in the impugned order and submitted that even if the main contractor has discharged the service tax on the 'Commercial or Industrial Construction Service', but still the appellant being the sub-contractor is liable to pay service tax because the appellant is providing the services to the main contractor, and the consideration received by the appellant from the main contractor is the consideration received for the services provided to the main contractor. 8. After consideration the submissions made by both the sides and perusal of the material on record, we find that the issue whether sub-contractor is liable to pay service tax on the services on which the main contractor had paid the service tax, there were contrary decisions on this issue among the various benches of the Tribunal and the matter was referred to the Larger Bench and the Larger Bench has settled the issue in the case of CST Vs. Melange Developers P. Ltd., 2020 (33) GSTL 116 (LB). Further, we find that in the case of Vinoth Shipping Services Vs. Commissioner of Ex. & S.T., Tirunelveli reported in 2021 (55) GSTL 313 (Tri.-Chennai) where the Division Bench of ....
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....ischarged Service Tax liability on the activity undertaken by the sub- contractor in pursuance of the contract." 9. Following the above decisions, we have no hesitation to hold that the appellant/sub-contractor is liable to pay the Service Tax even if the main contractor has discharged the liability. The issue on merits is found against the assessee and in favour of the Department. 10. Further, we find that the issue whether in such cases extended period of limitation can be invoked or not was also considered by various benches of Tribunal and in this regard the Delhi Tribunal in the case of Max Logistics Ltd. Vs. Commissioner of Central Excise, Jaipur, 2017 (47) S.T.R. 41 (Tri.-Del.). In para 11 has held as under: "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 fr....
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....ars have not been furnished in time by the appellant which was obtained from Registrar of Companies. As such, it was held that the appellants wilfully suppressed material facts. We find that the service tax 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." 11. The said findings on limitation has also been approved by the Larger Bench of the Tribunal in the case of Melange Developers Pvt. Ltd. cited (Supra). Further, we find that this issue has also been considered recently by the Division Bench of the Ahmadabad Tribunal in the case of Shanti Construction Company Vs. CCE & S.T., Gujarat reported i....