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TMI Blog2018 (8) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 20.06.2012 read with Section 68(2) of Finance Act, 1994 and Rule 6 of Service tax Rules. 2. The case of the appellant in brief is that during audit conducted by the respondent department it was pointed out that between July 2012 to September 2013 the appellant had received services from M/s. Vishwajeet Fabricators, M/s. Tejal Electricals, M/s. Magha Infrastructure etc. towards MRA services and paid 100% applicable service tax on the value of service provided by them. As per Notification no. 30/2012 dated 20.06.2012, as the service provider was to pay 25% of the service tax while appellant was required to pay 75% of the service tax payable. While acknowledging that labour contractor had charged and paid the service tax on full bill/ i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposing tax liability, interest and penalty on the appellant in justifying the extended period. The said order is being challenged in this forum. 3. In the memo of appeal and during course of hearing of appeal, the ld. CA for the appellant Shri Jay Chedda, urged to set aside the Order-in-Appeal and grant refund of service tax paid in compliance to audit direction along with applicable interest on the grounds narrated above along with additional ground that interest service liability has been discharged by the service provider as well as by the appellant himself as service recipient before issue of such show-cause notice. Further, such bifurcation of service tax liability in the ratio of 25:75 could not be done by them as it was a new lev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld the order-in-original passed by the passed by the Dy. Commissioner of Service tax, Div-V on dated 30.11.2006 which needs no interference by this Tribunal. 6. Heard both sides at length and perused the case records as well as relevant statutory provisions contained in Notification 30/12 dated 20.06.2012. In the said Notification, w.e.f. 01.07.2012 in case of supply of manpower for any purpose or service in exemption of work contract by an individual, HUF or partnership firm whether registered or not including association of persons are required to pay 25% of service tax and the service receiver is required to pay 75% of the said tax. Going by the backdrop of bringing such provision into the statute book, if various literatures are referr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der who are liable to pay service tax. But as commented by Ms. S. Sharma in her article on reverse charge mechanism published in the Chamber Journal of December 2012 at page 95, this system would bring lot of confusion and uncertainty and among them the first would relate to identification of such vendors. In other words, whether the service provider is from an organised sector or unorganised sector, it would be difficult for the service recipient to trace out the same. As referred in the factual backdrop of the case in the preceding para such concerned units have provided manpower service to the appellant and collected 100% of the applicable tax. This Circular no. 30/12 is applicable to individual i.e. proprietorship firm, HUF, partnership ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (41) STT 278 - CESTAT], and applying Section 67(7) of the Act, the ld. Counsel for the appellant argued that payment of service tax by the service recipient in full can be taken as payment by the appellant through its agent since assessee means the person liable to pay service tax and it includes its agent. But the same was not found favour in the order passed by the Commissioner (Appeals) who made a distinction between the concept of principal and agent and distinguished with clarity about the non-applicability of the said decision to the present case. Further principal and agent relationship are based on contract for discharge of certain act in a specified manner and no such contract or agreement or MOU is placed before the court to subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f service providers, there is no point in placing certain manpower service provided by the service provider whose firm names are referred in the audit report in those categories without any basis. More importantly to my sincere consideration, raising of bills/ invoices and mentioning of percentage of tax payable by the service provider and service recipient, by the service provider itself would form the basis of identification of service providers, if they fall under those specified categories or under threshold limit in the organised sector and such a basis is found absent in the entire proceeding initiated against the appellant. 9. Two more points are required to be placed on record. First, what benefit can be derived by the appellant in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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