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2013 (5) TMI 697 - CESTAT NEW DELHIServices of cargo handling - service tax demand - appellant took a categorical stand that they are providing different category of manpower to M/s AAI, for doing the job of loading, unloading packing, unpacking etc. under the supervision and control of M/s AAI - They also contested the demand on the point of limitation - Adjudicating Authority did not impose any penalty - Held that:- As decided in OIKOS vs. CCE, Bangalore III [2006 (10) TMI 379 - CESTAT BANGALORE] taking note of Board’s Circular dated 7/10/98 as also Delhi Commissionerate Trade Notice No. 53/CE (ST)/97 dated 4/9/97 held that as the main service provider has discharged the duty liability, no separate service tax can be confirmed against the sub-contractor. Also see Viral Builders vs. CCE, Surat (2010 (11) TMI 312 - CESTAT, AHMEDABAD),Newton Engg. & Chemicals vs. CCE, (2007 (8) TMI 293 - CESTAT AHMEDABAD) and Vijay Sharma & Co. vs. CCE, Chandigarh(2010 (4) TMI 570 - CESTAT, NEW DELHI) By applying the ratio of the above decisions to the facts of the present case, it is found that in as much as the payment of service tax on the full cargo handling service does not stand disputed by the Adjudicating Authority, second time confirmation of service tax on that part of the services, which stands further delegated to the appellant, cannot be upheld. There are certificates given by M/s AAI indicating that they have paid service tax on the full considerations and the job contract given to the appellant is in the nature of sub-contractor at a lump-sum rate - thus set aside the confirmation of demand of duty - Revenue’s appeal for imposition of penalty on the assessee does not survive. In favour of assessee.
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