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TMI Blog2019 (8) TMI 1027X X X X Extracts X X X X X X X X Extracts X X X X ..... ections 76 and 78 of 78 of the Finance Act, 1994 The Act. 2. The appellant is a sub-contractor and had received payment of Rs. 19,30,94,411/- for fabrication, erection and commissioning work of the main contractors namely, M/s Gannon Dunkerley & Co. Limited, New Delhi and M/s Viraj Steel & Energy Limited, New Delhi. It did not pay service tax for the reason that the works order required service tax to be paid by the main contractors and the main contractors had also discharged this liability of tax and had given a certificate to the appellant. 3. However, a Show Cause Notice dated 19 October, 2012 was issued to the appellant mentioning therein that during the course of audit of the records, it was noticed from the balance sheets for the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nance Act, 1994. They also appear to be liable for imposition of penalties under Section 76 (for period till 10.5.2008) and 78 of the Finance Act, 1994." 4. The appellant filed a detailed reply to the Show Cause Notice mentioning therein that since the main contractors had already made payment of service tax and the appellant did not collect the service tax amount from the main contractors, the levy of service tax was not justified. The appellant also pointed out that the main contractors had also issued certificates which indicated that service tax had been paid by them also for the value of work executed by the appellant. It was also stated that the work orders also provided that the principal contractors shall bear the service tax. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant had not paid service tax on the value of work undertaken as a sub-contractor and the payment was not even disclosed in the ST-3 returns, concluded that the appellant had suppressed facts with an intention to evade payment of service tax. 6. Learned Counsel for the appellant does not dispute that in view of the Larger Bench decision of this Tribunal in Commissioner of Service Tax Versus M/s Melange Developers Private Limited Service Tax Appeal No. 50399 of 2014 decided on 23 May, 2019 a sub-contractor is required to pay service tax but what he contends is that during the period in dispute namely, from 2007 up to 2012, the appellant bonafide believed that no service tax was required was required to be paid by a sub-contractor be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... airly stated that in terms of the decision of the Larger Bench of this Tribunal in Melange Developers, a sub-contractor is required to discharge the service tax liability for which credit can be taken by the main contractors, but what he contends is that such service tax liability should be confined to the main period of limitation provided for Section 73(1) of the Act and the extended period of the limitation under the proviso to Section 73(1) of the Act could not have been invoked. 10. We find substance in the submission advanced by the learned Counsel for the appellant. It cannot be urged that there was any wilful suppression of facts with an intention to evade payment of duty as is the requirement of Section 73(1) of the Act. There wer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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