TaxTMI 
TaxTMI 
2023 (11) TMI 1444
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....er Bench. Therefore, no mala fide intention to evade payment of Service Tax can be attributed to the appellant. 2.1 He further submits that there was a clear understanding that since the main contractor M/s Shapoorji Pallonji & company Ltd. is discharging the Service Tax on the entire value which includes the value of the services provided by the appellant, there cannot be double taxation by payment of Service Tax on the part of the appellant. Accordingly, the extended period of limitation is not invokable in the present case. In support of this he placed reliance on the following Judgments: ● Thakarshi J Likhiya Vs CCE, Rajkot 2023 (6) TMI 847- CESTATA hmedabad ● Laxmi Engineering P Ltd 2023 (4) TMI 348- CESTAT-Ahmedabad ● Sharma Decorators 2023 (4) TMI 351-CESTAT- New Delhi ● Heena Enterprise & MK Enterprise 2022 (7) TMI 1182-CESTATAhmedabad 3. Shri Rajesh Nathan, Learned Assistant commissioner (AR) appearing on behalf of the revenue reiterates the finding of the impugned order. 4. We have carefully considered the submission made by both the sides and perused the record. We find that as regard the levy of Servic....
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....,55,26,239/- received by the said assessee from their client towards value of goods traded during the provisions of "erection, commissioning and installation service" in the FYs 2007-08 to 2010-11 would be considered as taxable income by disallowing them the benefits of Notification No. 12/2003-ST and whether Service tax of Rs. 2,26,04,332/- involved thereon would be payable by the said assessee along with applicable interest as demanded in the SCN dated 23.10.2012 or otherwise? (iii)whether the amount of Rs. 15,21,16,142/- received by the said assessee from their clients towards value of goods traded during the provision of "erection, commissioning and installation service" in the FY 2011-12 would be considered as taxable income by disallowing them the benefits of Notification No. 12/2003-ST and whether service tax of Rs. 1,01,48,866/- involved thereon would be payable by the said assessee alongwith applicable interest as demanded in the periodical SCN dated 21.05.2013 or otherwise ? 5.1 As per the facts prevailing on records and argued by both the sides there is no dispute that there is also contract for supply of goods/Sale of goods and....
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....cumentary proof specifically indicating the value of the said goods and materials. Admittedly, the value of the goods and materials, which are required to be used for providing service stand separately disclosed in the agreement/contract as also separately mentioned in the invoices raised by the appellants and their books of account. Appellants have paid the VAT on the supply of goods, in such case it has to be held that the same were sold to the customers and the service tax cannot be demanded from the appellant on the value of the said goods. 5.3 The Learned Commissioner, in fact accepts the above proposition of law, but does not extend the benefit to the appellants on the ground that Notification No. 12/2013-ST provide a condition for non-availment of Cenvat Credit. Appellant following a practice wherein they procured goods by placing order to manufacturers, such manufacturer supply their goods under invoice by indicating the name of the Appellant as the 'Buyer' and the name of the service recipient as the 'Consignee'. Based on these invoices, service recipients were availing cenvat credit of duty paid on the goods and such Cenvat availment would amount to breach o....
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....icted for availment of Cenvat Credit to Service provider only, the said Notification nowhere imposed the condition related to non- availment of cenvat credit to service recipient. Therefore, the benefit of exemption under Notification No. 12/2003-S.T. cannot be denied to Appellant. 5.4 In the present case, we also find that the Tribunal vide Order No. A/10865/2014 dated 23.04.2014 while remanding the matter in para 3 observed as under: "3. On perusal of the records, we find that the issue involved in this case is regarding service tax liability on the appellant under the category of erection, installation and maintenance Service on the contracts which were executed by them with different parties. It is the claim of the assessee before the adjudicating authority as well as before us that they had billed separately for the materials and for the services. It is also the claim that the Service Tax liability on the services rendered was discharged and VAT was discharged on the supply of portion. Learned Counsel brings to our notice the findings recorded in para 6.4.1 to 6.4.4, we find that the adjudicating authority has recorded that the appellant has made th....
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.... charged. This position has been elaborately dealt with in the decision of the Shilpa Colour Lab v. CCE, Calicut reported in 2007 (5) S.T.R. 423 (T) supra. This view has been affirmed in many decisions. Once, the sales tax has been paid on the materials, then on the same, service tax also cannot be charged. At this stage, we also take note of the Board's Circular No. 96/7/2007-S.T., dated 23-8-2007 laying down that the value of spare parts sold by a service provider is not required to be taken into consideration if the same are subjected to levy of sales tax and VAT and there is clear evidence to show the sale of the same. Circular further goes on to say that the fact of payment of VAT/sales tax on a transaction value indicates that the said transaction is treated as sale of goods. Keeping in view the Board circular as also the precedent decisions of the Tribunal, we hold that the appellant are not liable to pay service tax on the value of supply of goods/ material. 5.7 As regard the service tax demand of Rs. 15,60,153/- we find that Learned Commissioner confirmed the said demand on the ground that issue regarding payment of service tax by sub-contractor has been....
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....11 (21) S.T.R. 457 (Tri.-Ahmd.) observed that service stands provided only once and as such tax is not payable twice for the same service. Further in the case of Sunil Hi-Tech Engineers Ltd. v. CCE, Nagpur reported in 2010 (17) S.T.R. 121 (Tri.-Mumbai), the service tax confirmed against the sub-contractor was set aside on the ground that the main contractor has already paid the Service Tax and the matter was remanded to verify the above effect. The same ratio was laid down by the Tribunal in the case of Newton Engg. & Chemicals v. CCE, Vadodara reported in 2008 (12) S.T.R. 378 (Tri.-Ahmd.) and by the Larger Bench decision of the Tribunal in the case of Vijay Sharma & Co. v. CCE, Chandigarh reported in 2010 (20) S.T.R. 309 (Tri.-LB). 5.8 However the Larger bench of Tribunal in case of Commissioner v. Melange Developers Pvt. Ltd. - 2020 (33) G.S.T.L. 116 (Tribunal) held that the sub-contractors also needs to pay Service tax in their individual capacity. We observed that in the present matter appellant has acted as subcontractor. Earlier, as mentioned above, there were contrary clarifications by the government that the sub-contractor is not liable to pay service tax when the ....