TMI Blog2019 (2) TMI 483X X X X Extracts X X X X X X X X Extracts X X X X ..... ces is not sustainable as the main contractor has discharged the service tax liability - demand set aside. Manpower recruitment or supply agency service - SSI Exemption - Held that:- This demand is sustainable on the appellant. It is undisputed that appellant had during the period in question had supplied temporary manpower to B&R for executing various works on M/s B&R. This would fall under the category of manpower recruitment or supply agency services - The point which has been urged by the learned counsel that appellant would be eligible for small scale service providers exemption will not carry their case any further as in order to claim exemption, appellant’s turn over has to be within a specified limit as per the Notification. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services and ₹ 1,41,589/- short paid under the category of manpower recruitment or supply agency services. The said show-cause notice besides demanding the tax with interest also proposed to impose penalties. Appellant contested the show-cause notice on the ground that they being sub-contractor of B R and B R having discharged the service tax liability in its entirety, they are not liable to pay any tax and that as a small scale service provider the benefit of exemption should be extended to them. They also contested the show-cause notice on limitation. The adjudicating authority did not agree with the contentions raised and confirmed the demands with interest and imposed penalties. 3. Learned counsel appearing for the appellant s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ategory of erection commissioning or installation service. 5. Learned counsel also submits that the demand is hit by limitation as the appellant had already produced all the documents which were sought from them and hence, the demand raised by show-cause notice dated 20.10.2009 for the period April 2004 to March 2008 is to be set aside on the ground of limitation also. 6. Learned A.R. on the other hand draws our attention to the findings of the adjudicating authority in the impugned order. Drawing our attention to the fact that appellant is not disputing that they are sub-contractors of B R and are liable to pay tax which is very much obvious from the fact that they have started making the payment of tax from October 2007. He would su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Power Mech Projects Ltd (supra) wherein the Bench in Paragraph No 5 held as under: 5. We are convinced and satisfied with the arguments put forward by the counsel appearing for the appellants to conclude that the demand of service tax for ECIS services is not sustainable as the main contractor has discharged the service tax liability. So also as the appellant had paid service tax in regard to MMR services before issuing the show cause notice, no penalty can be imposed in this regard. Cumulatively, all penalties imposed in the impugned order are unsustainable and liable to be set aside, which we hereby do. The demand and interest of service tax on ECIS is set aside for the reason that the main contractor has discharged the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich has been urged by the learned counsel that appellant would be eligible for small scale service providers exemption will not carry their case any further as in order to claim exemption, appellant s turn over has to be within a specified limit as per the Notification. In the case in hand we find that appellant s taxability on the services rendered as a sub-contractor is not in dispute but the liability has been discharged by the main contractor. Hence no tax liability arises on the appellant is the finding of this Bench. If that be so, the said turn-over of sub-contracted value would definitely be included in to aggregate value which is prescribed for extending the benefit of small scale service providers exemption. In view of this, we d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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