2025 (6) TMI 181 - AT - Service Tax

Liability of appellant to pay service tax as sub-contractor when the main contractor has already paid service tax on the whole value of the receipts including the receipts of the sub-contractor - HELD THAT - The issue is squarely covered vide the decision in the case of Melange Developers Pvt. Ltd. 2019 (6) TMI 518 - CESTAT NEW DELHI-LB . The Larger Bench while referring various decisions has held that it is not possible to accept the contention of the learned Counsel for the Respondent that a subcontractor is not required to discharge Service Tax liability if the main contractor has discharged liability on the work assigned to the sub-contractor . Conclusion - Sub-contractors providing taxable services are liable to pay service tax regardless of the main contractor s payment. Appeal dismissed.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal question considered in the appeal is:

"Whether the appellant is liable to pay service tax as sub-contractor when the main contractor has already paid service tax on the whole value of the receipts including the receipts of the sub-contractorRs."

This issue involves the interpretation of service tax liability in cases where a subcontractor provides taxable services that are part of the main contractor's overall contract, and whether such subcontractors are independently liable to pay service tax despite the main contractor's payment covering the entire contract value.

2. ISSUE-WISE DETAILED ANALYSIS

Issue: Liability of sub-contractors to pay service tax when the main contractor has already discharged service tax on the entire contract value.

Relevant legal framework and precedents:

The Tribunal examined several precedents and legal provisions, primarily the Finance Act, 1994, and the CENVAT Credit Rules, 2004. The issue has been debated in various decisions, including those by Larger Benches of the Tribunal and the Supreme Court, as well as Circulars issued by the Central Board of Excise and Customs (CBEC).

Key precedents considered were:

• Melange Developers Pvt. Ltd. (Larger Bench decision)
• Urvi Construction
• BCC Developers and Promoters Pvt. Ltd.
• M/s Dhaneshra Engineering Works
• M/s Edac Engg. Ltd.
• Max Tech Oil & Gas Services Pvt. Ltd.
• CCE & ST, Raipur vs. M/s J.K. Transport
• Vijay Sharma & Company (Larger Bench decision)
• Supreme Court decision in Larsen and Toubro Ltd. vs Additional Deputy Commissioner of Commercial Taxes

Court's interpretation and reasoning:

The Tribunal noted that earlier decisions such as Urvi Construction and BCC Developers had taken the view that taxing the sub-contractor when the main contractor has already paid service tax would amount to double taxation, which is impermissible under Article 265 of the Constitution. These decisions relied on Circulars issued by the CBEC, which initially suggested that sub-contractors were not liable if the main contractor had discharged the tax.

However, the Larger Bench in Melange Developers overruled these views, emphasizing the role of the CENVAT Credit Rules. The Tribunal explained that the service tax liability arises at each stage of service provision. If a sub-contractor provides a taxable service, they are liable to pay service tax on that service regardless of the main contractor's tax payment. The CENVAT Credit Rules allow the main contractor to claim credit for service tax paid by the sub-contractor, thus preventing double taxation in economic effect, although tax is paid at multiple points.

The Tribunal referred to Max Tech Oil & Gas Services Pvt. Ltd. and similar decisions which held that the nature of service tax as a single-point tax does not preclude tax liability for each provider of taxable service. The credit mechanism under the CENVAT Rules ensures that tax paid by sub-contractors is credited to the main contractor, avoiding cascading tax effects.

The Larger Bench in Vijay Sharma & Company clarified that while double taxation in the strict sense is not permissible, the payment of service tax by both sub-contractor and main contractor does not amount to double taxation because the main contractor is entitled to credit for the tax paid by the sub-contractor, subject to verification of the chain of transactions and identity of services.

The Tribunal also distinguished the Supreme Court decision in Larsen and Toubro Ltd. which pertained to sales tax under the Karnataka Sales Tax Act, noting that the provisions and credit mechanisms under service tax law are materially different. The Supreme Court's ruling that the value of work entrusted to sub-contractors should not be included in the turnover of the main contractor for sales tax purposes does not apply to service tax liability under the Finance Act and the CENVAT Rules.

Key evidence and findings:

The appellant was engaged in providing erection, commissioning, and installation services and was registered for service tax. The department's audit revealed non-payment of service tax on amounts received from the main contractor during the period April 2009 to September 2012. A Show Cause Notice was issued demanding service tax, interest, and penalties, which was confirmed by the adjudicating authority. The appellant did not contest the factual findings but disputed the legal liability to pay service tax as a sub-contractor when the main contractor had already paid tax on the entire contract value.

Application of law to facts:

The Tribunal found no distinguishing facts in the present appeal from those in Melange Developers. The appellant's activities fell squarely within the ambit of taxable services. The main contractor's payment of service tax on the total contract value did not absolve the sub-contractor of his independent liability to pay service tax on the services rendered. The CENVAT Credit Rules allowed the main contractor to take credit for service tax paid by the sub-contractor, thus preventing economic double taxation.

Treatment of competing arguments:

The appellant's argument that taxing the sub-contractor when the main contractor has already paid service tax would amount to double taxation was considered but rejected based on the statutory scheme and the Larger Bench ruling. The Tribunal also rejected the reliance on the Supreme Court decision relating to sales tax, as the service tax law and credit mechanisms differ significantly.

The respondent's argument that the sub-contractor is liable to pay service tax on the taxable service rendered was accepted, supported by the statutory provisions and the CENVAT Credit Rules. The Tribunal emphasized that the tax liability arises at each stage of service provision, and the credit mechanism avoids cascading tax effects rather than eliminating tax liability at each stage.

Conclusions:

The Tribunal concluded that a sub-contractor is independently liable to pay service tax on the taxable services provided, even if the main contractor has discharged service tax liability on the entire contract value. The CENVAT Credit Rules ensure that the main contractor can claim credit for the tax paid by the sub-contractor, thereby preventing double taxation in effect. Consequently, the appeal was dismissed, and the impugned order upheld.

3. SIGNIFICANT HOLDINGS

The Tribunal's key legal reasoning includes the following verbatim excerpts:

"A sub-contractor would be liable to pay Service Tax even if the main contractor has discharged Service Tax liability on the activity undertaken by the sub-contractor in pursuance of the contract."

"If Service tax is paid by a sub-broker in respect of same taxable service provided by the stock-broker, the stock broker is entitled to the credit of the tax so paid on such service if entire chain of identity of sub-broker and stock broker is established and transactions are provided to be one and the same."

"The service tax leviable at the hands of each service provider is decided by nature of activities undertaken by them. If the same is covered by scope of the taxable entry under Finance Act, 1994 tax liability arises."

"The scheme of service tax law suggest that it is a single point tax law without being a multiple taxation legislation. In absence of any statutory provision to the contrary, providing of service being event of levy, self same service provided shall not be doubly taxable."

"The CENVAT Credit Rules allow the main contractor to take credit for service tax paid by the sub-contractor, thus preventing double taxation in economic effect."

Core principles established include:

• Service tax liability arises independently at each stage of taxable service provision.
• Sub-contractors providing taxable services are liable to pay service tax, regardless of the main contractor's payment.
• The CENVAT Credit Rules provide a mechanism for credit of service tax paid by sub-contractors to the main contractor, preventing cascading tax effects.
• Double taxation in the strict sense is impermissible, but payment of service tax by both sub-contractor and main contractor does not constitute double taxation due to the credit mechanism.
• Decisions relating to sales tax or VAT are not directly applicable to service tax due to differing statutory schemes and credit provisions.

Final determinations on the issue were that the appellant/sub-contractor is liable to pay service tax on taxable services rendered, and the appeal challenging the demand was dismissed with the impugned order upheld.