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2021 (12) TMI 1268 - AT - Service TaxWork contract service - the appellant has received the amount towards the provisions of said services from their service receiver but have not paid the Service Tax on such taxable receipts - extended period of limitation - HELD THAT:- There is no dispute about the fact that the amount of Service Tax for the amount of consideration received by the appellant stand already paid with the Government exchequer, however by the main contractor M/s. Gannon Dunkerley and Co. Ltd. There is also no denial to the fact that during the period there were several pronouncements made not only by this Tribunal but even by the departmental adjudicating authority holding that the sub-contractor is not liable to pay the Service Tax when the main contractor has paid the said Service Tax. The facts of the case are sufficient to hold that there was no clarity about the individual liability of the sub contractor towards the payment of service tax. Even the Department was not clear on the interpretation of the circulars issued, judgements made and practice followed on sub contractors liability. As such in the case where the main contractor had discharged the Service Tax on entire value of service. These findings are sufficient for me to hold that there cannot be any intentional conduct of the appellant to not to pay the service tax during 2013-14. Alleging fraud mis-statement or suppression of facts upon the appellant in view of prevalent situation is opined to be definite error on part of the Adjudicating Authority below. The onus was otherwise on the Department to prove that short payment of service tax has been made with intent to evade such payment. Apparently and admittedly in the present case the service tax stands already paid with respect to the amount involved in the present appeal, i.e. the amount of consideration received by the appellant/ sub contractor for providing ‘works contract services’ to main Contractor M/s. Gannon Dunkerley & Co. Ltd. The question of any positive evidence proving evasion does not at all arise. The impugned show cause notice is held to be barred by limitation - Appeal allowed - decided in favor of appellant.
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