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2017 (7) TMI 449 - CESTAT MUMBAI

2017 (7) TMI 449 - CESTAT MUMBAI - TMI - Sub-contract - taxability in hands of sub-contractor - penalty - the main submission of the appellant is that they being a sub-contractor to the main contractor, they are not liable to pay service tax - Held that: - the main contractor are provider of construction service whereas the appellant is providing an independent service of excavation for which they are the main service provider and hence, they are not entitled for the benefit as a sub-contractor .....

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adjudicating authority - the penalty imposed u/s 78 is not legal and proper - penalty imposed u/s 78 invoking the provisions of Section 80 of the FA, 1994. - Appeal allowed - decided partly in favor of appellant. - ST/89111/2013 - A/88132/17/STB - Dated:- 28-6-2017 - Shri Ramesh Nair, Member (Judicial) And Shri Raju, Member (Technical) Shri J N Somaiya, Advocate for the appellant Shri M P Damle, Asstt. Commissioner (AR) for the respondent ORDER Per: Ramesh Nair The appellant are engaged in p .....

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8377; 4,51,315/- totaling to ₹ 27,66,370/- was made along with interest and penalties. The show-cause notice was adjudicated by the Joint Commissioner, whereby the demand was reduced to 6,21,493/- and 4,01,798/- was confirmed and also imposed penalties under section 76, 77 and 78 of the Finance Act, 1994. Being aggrieved by the order-in-original the appellant filed an appeal before the Commissioner (Appeals) in order-in-appeal No. reduced the demand from ₹ 6,21,497/- to ₹ 5,27, .....

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The main contractors are M/s. Chaitanya Udyog, M/s Eagle Construction and M/s Shivprasad Construction who were legally liable to pay the service tax on overall work of constructions. Therefore, the service tax liability on the present appellant is double taxation. He submits that they have paid an amount of interest 1.17 lakhs but the same was not appropriated. The cum-tax benefit was not extended. As regards the penalty, he submits that there is no mala fide intention on the part of the appell .....

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ot be any mala fide intention of suppression of fact on the part of the appellant. 4. He further submits that while computing the demand of ₹ 5,27,493/- an amount of ₹ 158/- was wrongly confirmed and the cum-duty benefit was not extended; that after considering both, the demand stand reduced to ₹ 96,163/- for which he submitted a calculation chart. The appellant have admittedly paid the entire amount of service tax along with interest before issuance of show cause notice. For t .....

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l Excise, Jaipur -12010 (17) STR 240 (Tri-Del.) 5. On the other hand Shri M.P. Damle, Learned Assistant Commissioner (AR) reiterates the finding of the impugned order, He further submits that the appellant has provided services of excavation which is an independent service and cannot be considered as a subcontractor service in connection with the construction service. Therefore, the benefit of sub-contractor's service being not chargeable to service tax is not available to them. 6. We have c .....

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ase where construction service is provided by a sub-contractor on behalf of the main contractor and the main contractor discharges the service tax liability on the entire service of construction. In the present case, the main contractor are provider of construction service whereas the appellant is providing an independent service of excavation for which they are the main service provider and hence, they are not entitled for the benefit as a sub-contractor. Therefore, we are of the view that the .....

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