TaxTMI 
TaxTMI 
2023 (10) TMI 1091
X X X X Extracts X X X X
X X X X Extracts X X X X
....t submits that in the case of demand on sub-contractor, the suppression of fact cannot be invoked as there were contrary circulars of the board and issue was finally decided by the Larger Bench of the Tribunal in the case of M/s. Melagne Developers Pvt Ltd -2019 (6) TMI 518 (CESTAT New Delhi). He placed reliance on the following judgments: Synergy Engineers Group Pvt Ltd- 2023 (5) Centax 158; Vinoth Shipping Services-2021 (55) GSTL 313; M/s Vishal Engineering Company-2023 (7) TMI 260 Intermark Shipping Agencies Pvt Ltd V/ CCE & ST, Rajkot-2023 (8) TMI 123 Laxmi Engineering P Ltd V. CST, ST Ahm-2023 (4) TMI 348 CESTAT Ahmedabad Pramukh Earth Movers- 2023 (8) TMI 851- CESTAT AHD 2.1 He submits that in view of the above judgments, the issue is no longer res integra on the ground of time bar. 3. Shri Ajay Kumar Samota, learned Superintendent (Authorized Representative) appearing on behalf of the revenue reiterates the findings of the impugned order. 4. On careful consideration of the submissions made by both the sides and perusal of record. We find that the fact of the case is not under dispute that the appellant have provided the service of erection, commissioning....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ue to conflicting judgments the larger bench has finally decided that in case of service provided by sub-contractor even though the main contractor have paid the service tax on total value the sub-contractor is liable to pay service tax. Since there was serious doubt about the taxability of the sub-contractor and also due to conflicting judgment, which subsequently resolved by the larger bench in the case of M/s Melange developers Pvt. Ltd (Supra), the bona fide belief of the appellant that they are not liability to pay service tax cannot be doubted, questioned. In such situation the extended period which can be invoked only on the ingredient such as suppuration of fact, misstatement, fraud, collusion with intent to evade payment of Service Tax, cannot be invoked. 4.2 On the identical fact this Tribunal has consistently taken a view that on the issue of taxability on subcontractor the extended period cannot be invoked this has been considered in the following Judgments: In the case of M/s. Synergy Engineers Group Pvt. Ltd. Delhi Tribunal passed the following order: "15. The issue as to whether the extended period of limitation could be invoked in such a situation when ther....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ysis the service tax "11. 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 various case laws to reiterate their views. We find that the appellant is having a strong ground regarding the question of timebar. It is to be noted that all invoices, for full consideration, have been raised by RSIC and the amount collected from the clients [importers and exports] were subjected to service tax which was deposited to the Government. RSIC in turn are paying certain amount to the appellants to get the services in these ICDs. In such situation, there is a clear possibility for a bona fide belief that as the whole amount has been subjected to service t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 headquarters 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 Even in the Order-in-Original, the only finding for invoking the extended period is noted in paragraph 19, as under: "As regards penal action, M/s. Vinoth Shipping Services, Tuticorin have contravened the Act by suppressing the fact of rendering services and not paying the Tax due during the year 2006-07 and by not obtaining registration certificate for service rendered. Hence penalty is imposable under Sections 76, 77 & 78 of the Act." 9.2.3 There is no clear allegation that the appellants have wilfully suppressed facts with the intention to evade payment of Service Tax....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ters and exports) were subjected to service tax which was deposited to the Government. RSIC in turn are paying certain amount to the appellants to get the services in these ICDs. In such situation, there is a clear possibility for a bona fide belief that as the whole amount has been subjected to service tax the amount received by the appellant may not be liable to service tax in connection with the services rendered by them. The issue involved has been a subject matter of interpretation by the Tribunal and High Courts. In fact the earlier Circular issued by the Board, covering the period prior to the introduction of Cenvat Credit Rules gave an impression that when the main service provider discharged the service tax on gross value there may not be tax liability on the sub-contractor rendering similar service to the main contractor The Tribunal in various cases held in such a case involving interpretation of law and also a bona fide belief regarding service tax liability, will not attract the demand for extended period. We also take note that service tax liability on the appellant when discharged will be available as a credit to RSIC which can be used by RSIC for discharging thei....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Counsel. We find that during the relevant period there were various Circulars and trade notices by the Commissionerate clarifying that where the principle service provider discharged his service tax liability on the entire value of the services, a separate liability cannot be imposed against the sub-contractor. The said Circulars stands taken note of by the Tribunal in various judgments and its stand held that where the entire service tax has been paid on the full consideration of the services, the sub-contractors' liability would not arise to pay service tax again on the part of principle service. One such reference can be made by following circulars: TRU letter F. No. 341/18/2004-TRU (PI) dated 17-12- 2004 -Circular No. 23/3/97-5.7, dated 13-10-1997-Master Circular No. 96/7/2007-ST dated 23-8-2007 In fact, also from various following decisions of the Tribunal:- Urvi Construction v. CST, Ahmedabad 2010 (17) S.TR. 302 (TH. Ahmd) 2009- TIOL1890- CESTAT-AHM -CCE, Indore v. Shivhare Roadlines - 2009 (16) S.TR. 335 (Tri-Del.) -2009-TIOL-526- CESTAT- DEL -Harshal & Company v. CCE, Vadodara - 2008 (12) S.TR. 574 (Tri-Ahmd.) -Semac Pvt. Limited v. CCE, Bangalore-2006....