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2017 (10) TMI 402 - AT - Service TaxRepairs and Maintenance Service - recovery of service tax - Proviso to Section 73(1) of Finance Act 1994 - Section 97 of Finance Act, 1994 - supply of tangible goods service - goods transport agency service - site formation service - Construction of APMC market - construction of sports complex/stadium - Held that: - From reading of Section 97, it is clear that as per subsection (1) of Section 97, repair and maintenance of roads was not be levied with Service tax for the period 16-6-2005 to 26-7-2009 both days inclusive. As per this provisions, service tax under Repair and maintenance of roads is not payable for the aforesaid period therefore demand in respect of repair and maintenance of road for the period 16-6-2005 to 26-7-2009 is set aside and if any demand arises other than this period the same stand upheld - demand set aside. As regard the demand of ₹ 7,51,569/- on Supply of Tangible Goods Service, ₹ 9,92,218 in respect of Goods Transport Service, ₹ 1,54,249/- on Manpower Recruitment Service and 20,00,096/- on Site Formation Service provide to Reliance Infrastruture, Butibori, as per the submission of the appellant they have admitted the demand and they do not contest the same therefore confirmation of demand also stand upheld - demand upheld. Construction of APMC market - Held that: - the vital submission was not considered by the adjudicating authority, therefore matter related to this demand is remanded to the adjudicating authority for passing a fresh order - matter on remand. Construction of sports complex/stadium - Held that: - construction of sports complex/stadium is not for commercial activity therefore such activity does not fall under the definition of Commercial and Industrial Construction service - demand set aside. Site formation service - appellant have provided services to M/s. Indu Project - case of appellant is that they are sub contractor and main contractor has paid service tax therefore they are not liable to pay service tax - Held that: - in the Finance Act, 1994 there is no special treatment given to sub contractor or there is any exemption to sub contractor. Every person provides service is an independent service provider, his service cannot be forwarded by service recipient to subsequent service recipient that will not absolve appellant as sub contractor from service tax liability. There is clear relation of service provider and service recipient between appellant and M/s. Indu Project, for such service consideration received by the appellant, therefore they are liable to pay service tax - The appellant admittedly not declared any details about service tax liability on the construction service they have provided to the M/s. Indu Project, therefore there is clear suppression of facts. Accordingly, the service tax of ₹ 44,43,824/- is payable by the appellant, therefore this demand is upheld, interest and penalties imposed by the lower authority will be commensurate to the demand of service tax upheld - demand upheld. Decided partly in favor of appellant.
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