TMI Blog2019 (6) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... with an intent to evade payment of tax is not justified in view of the Trade Circular as well as various decisions of the Tribunal - further since the Commissioner has not considered various certificates/letters filed by the appellant from various prime consultants, this case needs to be remanded back to the adjudicating authority with a direction to pass a de novo order after considering all the documentary evidence which may be produced by the appellant in support of their claim. Appeal allowed by way of remand. - ST/CROSS/00209/2008 in ST/00238/2008 - Final Order No. 20451/2019 - Dated:- 31-5-2019 - SHRI S.S GARG, JUDICIAL MEMBER And SHRI C. J. MATHEW, TECHNICAL MEMBER Mr. M.S. Srinivasa Advocate For the Appellant Mr. Pakshirajan, AR For the Respondent ORDER Per: S.S GARG The present appeal is directed against the impugned order dated 13.3.2008 passed by the Commissioner of Service Tax wherein the demand for service tax of ₹ 42,98,625/- under the category of Consulting Engineer Service has been confirmed along with interest and also imposed penalty of ₹ 64,00,000/- und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commission service is classifiable under Business Auxiliary Service (introduced with effect from 1.4.2003) which cannot at any rate be classifiable under Consulting Engineering Service because the same would render the actual and specific entries introduced later redundant and defeat the legislative intent. For this submission, he relied upon the decision of the Tribunal in the case of BCCI vs. CST, Mumbai reported in 2007 (7) STR 384 (Tri.-Mumbai). 4.1 The learned counsel also submitted that the Commissioner in the impugned order has failed to exclude the value of reimbursable expense incurred by the appellant on behalf of their service recipient from the taxable value for not producing certification from the proper authorities like income tax authorities to corroborate their contention. This finding of the Commissioner is contrary to the judgment of the Hon ble Apex Court in the case of UOI vs. Intercontinental Consultants and Technocrats Pvt. Ltd. reported in 2018 (10) GSTL 401 (SC). It is his further submission that the learned Commissioner in the impugned order has failed to treat the provision of service to the service recipient abroad and consideratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the apex court has laid down that a beneficial circular has to be applied retrospectively while oppressive circular has to be applied prospectively and when the circular is against the assessee, they have right to claim enforcement of the same prospectively. Further, the decision relied upon by the DR is also contrary to the following decisions: L T Ltd. vs. State of Andra Pradesh reported in 2006-TIOL-327-HC-HYD upheld by the Hon ble Supreme Court as reported in 2008-TIOL-158-SC. Nana Lal Suthar vs. CCE, Jaipur-I: 2015-TOIL-2357-CESTAT-DEL. CCE, Indore vs. Shivhare Roadlines: 2009-TIOL-526-CESTAT-DEL. 4.4 He further submitted that in the present case certificates/letters from the prime consultant was produced before the learned adjudicating authority which he has failed to consider. Learned counsel also submitted that demand for the period beyond the normal period of limitation is not sustainable inasmuch as there is no willful suppression or misstatement or contravention of any provision with an intent to evade any tax. The appellant was under a bona fide belief that since they are providing service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x once again on the same service. This contention of the appellant is backed by the Trade Notice dated 4.7.1997. Further, we find that the Tribunal in a catena of decisions cited supra has consistently held that once the contractor pays the service tax then subcontractor need not pay the service tax as it will amount to double taxation. The ratio of these decisions has not been considered by the Commissioner who only relied upon the Circular issued on 23.8.2007 which is much after the period in dispute. Further, we find that other contentions of the appellant regarding the reimbursable expenses and export of service have also not been considered and no findings have been returned by the Commissioner in the impugned order. Further, we find that the decision relied upon by the DR in the case of Sunil Hi-tech Engineers Ltd. is not applicable as the facts in that case are clearly distinguishable and moreover the assessee was justifying in having a bona fide belief that he is not liable to pay service tax because of the various decisions during the relevant time in his favour as also the Trade Circular of 1997. Further, we find that in the case of Nana Lal Suthar vs. CCE: 2015-TIOL-23 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lear opinion that on the given facts and circumstances, the Ld. Appellate authority himself felt that the respondent should get refund but he failed to discharge his duty as a public servant to render complete justice as the circumstances warranted since the case is under pre-master Circular era. We do appreciate his difficulties. The appellate order was passed on 21st August 2007 that is just 2 days before the master Circular was issued. We also appreciate that the respondent should get the double taxation relief which is granted in a different manner through the CENVAT Credit Rules, 2004. Therefore, we are of the view that if it is proved from record on verification, that the principal contractor has discharged the tax liability in respect of the contract, cascading effects should be avoided and the appellant is entitled to refund. It would be proper to implement the law without causing any harassment to the respondent if the cascading effect is demonstrated by the record itself upon examination of records of the principal contractor and the sub-contractor. This exercise is required to be done by the learned adjudicating authority. In the facts and circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X
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