TMI Blog2021 (2) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... port of services for the period prior to April 18, 2006. Appeal allowed - decided in favor of appellant. - Service Tax Appeal No. 55441 of 2014 - FINAL ORDER NO. 51039/2021 - Dated:- 21-1-2021 - MR. DILIP GUPTA, PRESIDENT AND MR. P V SUBBA RAO, MEMBER (TECHNICAL) Shri Tarun Gulati and Shri Ankit Sachdeva, Advocate for the Appellant Shri Radhey Tallo, Authorised Representative for the Department ORDER The appellant has filed this appeal against that part of the order dated July 31, 2014 passed by the Commissioner (Adjudication) [ the Commissioner ] that has denied CENVAT Credit on the service tax received from the sub-contractors and also on the service tax paid by the appellant on import of services under reverse charge mechanism. The remaining demands contained in the four show cause notices dated October 23, 2009 for the period 2004-09, October 21, 2010 for the period 2009-10, October 04, 2011 for the period 2010-11 and November 27, 2012 for the period 2011-12 have been dropped. 2. Two issues therefore, arise for consideration in this appeal: A. Whether services provided by the sub-contractors qualify as input services for the Appellant and thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-contractor and whether or not such services are used as input services. The fact that a given taxable service is intended for use as an input service by another service provider does not alter the taxability of the service provided. 6. The Commissioner has denied the benefit of the Circular for the reason that the Master Circular would only relate to a situation where part of the whole work is carried out by the sub-contractor, but in the present case, the whole work was performed by the sub-contractor. 7. This observation of the Commissioner in the impugned order is not only factually incorrect because a bare perusal of the agreement indicates that only a part of the work was assigned to the sub-contractor, but even otherwise the Circular cannot be restricted to a case where part of the whole work is performed by the sub-contractor. 8. This issue also stands decided in favour of the appellant in the matter of the appellant for a subsequent period from 2014 to 2015, where the Commissioner placed reliance on the above Circular dated August 23, 2007 and made the following observations: The order dated January 08, 2018 15. I have also examined the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny exemption granted, a sub-contractor has to discharge the tax liability. The service recipient i.e. the main contractor can, however, avail the benefit of the provisions of the Cenvat Rules. When such a mechanism has been provided under the Act and the Rules framed thereunder, there is no reason as to why a sub-contractor should not pay Service Tax merely because the main contractor has discharged the tax liability. As noticed above, there can be no possibility of double taxation because the Cenvat Rules allow a provider of output service to take credit of the Service Tax paid at the preceding stage. 11. In view of the above, it has to be held that the Commissioner was not justified in denying CENVAT Credit to the appellant on the services received from the sub-contractor. 12. The second issue that arises for consideration is regarding denial of CENVAT credit on service tax paid by the appellant on import of service under a reverse charge mechanism for the period prior to April 18, 2006. The relevant part of the order passed by the Commissioner is reproduced below: The assessees in their defence reply dated 26.4.2011 submitted that CENVAT credit is available in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having paid it, the assessee is entitled to get CENVAT credit and the assessee has rightly availed the CENVAT credit. Further, I note that by subsequent order of this Tribunal dated 19.02.2014 in the appellant‟s own case, assessee was held to be entitled to take CENVAT credit also. Therefore, I am of the considered opinion that the Commissioner (Appeals) has rightly held that in the facts and circumstances of this case, extended period cannot be invoked as there is no suppression with intent to evade payment of duty on the part of the assessee. Therefore, I do not find any merit in the appeal filed by the Revenue and the same is dismissed and the impugned order is upheld. 15. In Aditya Birla NUVO Ltd., the Tribunal observed as follows: 7. I have heard the ld Counsel for the parties and carefully perused the material on record including the circulars issued from time to time by the CBEC and also the judgements cited at bar by both sides. 8. After going through the various circulars and the judgements I find that there is only one charging section in the service tax i.e. Section 66, Section 66A is merely a deeming provision which deems that the services provided by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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