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2023 (10) TMI 1091 - CESTAT AHMEDABADLevy of service tax - providing the service in the capacity of subcontractor on behalf of the main contractor - suppression of facts or not - SCN dated 18.10.2009, was issued for the period September 2005 to June 2009 - invocation of extended period of limitation - HELD THAT:- The fact of the case is not under dispute that the appellant have provided the service of erection, commissioning and installation and fabrication in the capacity of sub-contractor for the main contractors as named above. The issue that in a case where the service was provided by the sub-contractor whether the sub-contractor is liable to pay Service Tax was under dispute in various cases and finally the same was decided by the Larger Bench in the case of COMMISSIONER OF SERVICE TAX VERSUS MELANGE DEVELOPERS PVT. LTD. [2019 (6) TMI 518 - CESTAT NEW DELHI]. Moreover, on the issue of taxability on the sub-contractor, there were contrary board circulars, in the first circular the board has clarified where the service is provided by the sub-contractor, the main contractor on whose behalf service is provided, is liable to pay the Service Tax and sub-contractor is not liable to pay Service Tax - However, later on taking U-turn, the board has clarified that the sub-contractor being independent service provider in any case is required to pay the Service Tax. Therefore, due to lack of clarity on the issue during relevant time and the issue being finally decided by the Larger Bench, no mala fide intention to evade payment of Service Tax can be attributed to the appellant. In the present case, since the service provision is during period September 2004 to April 2008, the SCN issued on 18.10.2009, the entire period is beyond normal period and hence the demand for the said period is not sustainable on the ground of time bar. This issue particularly on the ground of time bar has been decided in PRAMUKH EARTH MOVERS VERSUS C.C.E. & S.T. -VAPI [2023 (8) TMI 851 - CESTAT AHMEDABAD] where it was held that the entire demand being issued for extended period i.e. beyond one year from the date of show cause notice shall not sustain on limitation alone. The impugned order is set aside. The appeal is allowed.
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