2025 (6) TMI 1880 - AT - Service Tax

Liability of sub-contractor to pay service tax - work contract services or not - applicability of principles of estoppel and res-judicata in the matter of classification - eligibility for benefit of abatement under N/N. 01/2006-ST dated 01.03.2006 - gross value charged has been incorrectly computed by following best judgment assessment section 72 of Finance Act 1994 - benefit of cum-duty u/s 67(2) of the Finance Act 1994 - invocation of extended period of limitation - penalties. HELD THAT - It is an admitted fact that the appellant was a sub-contractor. The appellant himself has stated that as per Board s Circular sub-contractor were not liable to pay service tax. This issue has been considered by the Larger Bench of this Tribunal in the decision of Commissioner of Service Tax New Delhi vs. M/s. Melange Developers Pvt Ltd 2019 (6) TMI 518 - CESTAT NEW DELHI-LB where it was held that 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. The impugned order upheld - appeal dismissed.

Summary

The core legal questions considered by the Tribunal in this appeal are:

1. Whether the appellant's services are correctly classifiable under "Erection, Commissioning or Installation Services" or should be classified as "Works Contract Services".

2. Whether the appellant, acting as a sub-contractor, is liable to pay Service Tax independently, even if the main contractor has discharged Service Tax liability on the entire contract amount.

3. Whether the appellant is entitled to benefit of abatement notifications under Notification No. 01/2006-ST or Notification No. 12/2003.

4. Whether the demand for Service Tax for the period 2008-09 to 2010-11 is barred by limitation and whether the extended period of limitation is invokable.

5. Whether penalties under sections 76, 77, and 78 of the Finance Act, 1994 are imposable on the appellant for the respective periods.

6. Whether the gross value charged for 2011-12 was correctly computed by the department under best judgment assessment.

7. Whether the appellant is eligible to avail benefit of cum-duty under section 67(2) of the Finance Act, 1994.

Issue-wise Detailed Analysis:

1. Classification of Services - "Erection, Commissioning or Installation Services" vs. "Works Contract Services"

The appellant contended that their services are more appropriately classifiable under "Works Contract Services" rather than "Erection, Commissioning or Installation Services" as declared by the department. The appellant argued that denial of classification under works contract services on the ground that the appellant did not intimate the department or amend their registration certificate was unjustified. It was also submitted that settled law mandates that in case of wrong classification, the entire demand should be dropped.

The Tribunal noted the appellant's grounds but did not extensively dwell on this issue in the impugned order. The department's position was that the appellant was registered and filing returns under "Erection, Commissioning or Installation Services" as per Section 65(105)(zzd) of the Finance Act, 1994. The appellant was claiming abatement under Notification No. 1/2006-ST but had not declared the exemption in the ST-3 returns. The Tribunal did not find merit in the appellant's classification plea in light of the admitted facts and the audit findings.

2. Liability of Sub-contractor to Pay Service Tax Independent of Main Contractor's Payment

This was the pivotal issue in the appeal. The appellant argued that as a sub-contractor, they were not liable to pay Service Tax because the main contractors had already discharged the tax liability on the entire contract amount. The appellant relied on a Board Circular which they claimed exempted sub-contractors from payment of Service Tax.

The Tribunal extensively analyzed this issue by referring to a Larger Bench decision of the Tribunal which clarified the legal position regarding sub-contractors' liability. The Tribunal reproduced the relevant paragraphs of that Larger Bench ruling, which held as follows:

• Section 65(105)(zzzza) defines taxable services in relation to execution of works contracts.
• Every person providing taxable service, including sub-contractors, is liable to pay Service Tax under Section 68 of the Finance Act, 1994.
• The CENVAT Credit Rules, 2004 provide a mechanism whereby the main contractor can avail credit of Service Tax paid by sub-contractors, thereby eliminating any possibility of double taxation.
• The Master Circular dated 23 August 2007 superseded all earlier circulars and clarified that sub-contractors are taxable service providers and liable to pay Service Tax irrespective of the main contractor's payment.
• The Tribunal rejected the contention that sub-contractors are exempt merely because the main contractor paid Service Tax, emphasizing that the credit mechanism under the CENVAT Credit Rules prevents cascading of tax.
• The Larger Bench also referred to the principle of "revenue neutrality" and held that the sub-contractor's liability to pay Service Tax stands independent, but the main contractor can claim credit for the tax paid by the sub-contractor.

The Tribunal concluded that the appellant, being a sub-contractor, was liable to pay Service Tax even if the main contractor had discharged the tax liability on the sub-contracted work. All contrary decisions were overruled.

3. Eligibility for Abatement Benefits

The appellant claimed entitlement to abatement under Notification No. 01/2006-ST dated 01.03.2006 if the services were held to be "Erection, Commissioning or Installation Services". Alternatively, the appellant sought benefit under Notification No. 12/2003 if the former was denied.

The Tribunal did not explicitly rule on this issue in the impugned order but by upholding the demand and rejecting the appeal, it implied that the appellant was not entitled to the claimed abatements, primarily due to failure to declare exemptions properly in returns and non-compliance with procedural requirements.

4. Limitation and Extended Period of Limitation

The appellant contended that the demand for the period 2008-09 to 2010-11 was barred by limitation and that the extended period of limitation could not be invoked. The Tribunal did not find merit in this plea, as the extended period was presumably invoked under Section 73(1) of the Finance Act, 1994 due to suppression or misstatement by the appellant. The appellant's failure to appear and substantiate these claims weakened their position.

5. Penalties under Sections 76, 77, and 78 of the Finance Act, 1994

The appellant challenged the imposition of penalties under these sections for the respective periods. The Tribunal, relying on the findings that the appellant was liable for the tax demand and had not complied with procedural requirements, upheld the penalties. The Tribunal noted that penalties under Section 78 were not imposable for 2008-09 to 2010-11, but penalties under Sections 76 and 77 were rightly imposed for non-compliance and suppression.

6. Validity of Best Judgment Assessment for 2011-12

The appellant challenged the correctness of the gross value charged by the department under best judgment assessment as per Section 72 of the Finance Act, 1994. The Tribunal did not specifically overturn the assessment, indicating acceptance of the department's valuation in absence of contrary evidence or appearance by the appellant.

7. Eligibility for Cum-Duty Benefit under Section 67(2)

The appellant claimed entitlement to cum-duty benefit under Section 67(2) of the Finance Act, 1994. The Tribunal did not address this claim explicitly in the order, but given the overall dismissal of the appeal, it is inferred that this claim was not accepted.

Significant Holdings:

The Tribunal's key legal pronouncement, preserved verbatim from the Larger Bench decision, is as follows:

"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."

This pronouncement establishes the core principle that sub-contractors providing taxable services must independently discharge Service Tax liability, notwithstanding the main contractor's payment. The CENVAT Credit Rules provide the mechanism to avoid double taxation by allowing the main contractor to avail credit for tax paid by sub-contractors.

The Tribunal also reaffirmed the principle that a taxable service provider cannot evade tax liability by relying on the tax payment of another person in the contractual chain, thereby ensuring the integrity of the tax system.

On the issue of classification, the Tribunal implicitly upheld the department's classification of the appellant's services under "Erection, Commissioning or Installation Services" and rejected the appellant's plea for reclassification without proper procedural compliance.

Regarding limitation and penalties, the Tribunal upheld the extended period demand and penalties imposed, emphasizing the appellant's failure to comply with statutory requirements and procedural mandates.