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2023 (12) TMI 749 - AT - Service TaxNon-payment of service tax - sub contractor towards Survey and Exploration of Minerals service - wilful suppression or fraud or noncompliance on the part of this Appellant - HELD THAT:- It is an admitted fact that Appellant was registered with the Department and have been filing their returns regularly and maintained proper books of accounts. Further, judicial notice also taken that during the relevant period, it was the general understanding that service tax in case of work done by sub-contractor, is payable either by the sub-contractor or by the principal contractor and not by both. Further, the said issue was highly controversial as to liability of the sub-contractor to pay service tax, under the admitted facts that the main Contractor have discharged the tax liability. The said issue was referred to Larger Bench of this Tribunal in COMMISSIONER OF SERVICE TAX VERSUS MELANGE DEVELOPERS PVT. LTD. [2019 (6) TMI 518 - CESTAT NEW DELHI-LB] wherein it was held that although service tax being a destination tax liability, is only chargeable once on a transaction; But, in view of the mechanism of Cenvat credit available under the Cenvat Credit Rules, service tax can also be demanded from the Sub- Contractor, even if Main Contractor has paid, but at the same time, the Main Contractor shall be entitled to take Cenvat Credit of the tax paid by the Sub- Contractor. Appeal allowed on the ground of limitation and the impugned order set aside.
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