TMI Blog2023 (4) TMI 351X X X X Extracts X X X X X X X X Extracts X X X X ..... 24 - CESTAT, BANGALORE] , COMMISSIONER OF CUSTOMS C. EX., INDORE VERSUS SHIVHARE ROADLINES [ 2009 (2) TMI 202 - CESTAT, NEW DELHI] and URVI CONSTRUCTION VERSUS COMMISSIONER OF SERVICE TAX, AHMEDABAD [ 2009 (10) TMI 97 - CESTAT, AHMEDABAD] , had held that sub-contractors are not liable to pay service tax. As there were conflicting views, the issue was referred to Larger Bench. In M/S MAX LOGISTICS LIMITED VERSUS CCE, JAIPUR [ 2016 (9) TMI 1024 - CESTAT NEW DELHI ] - The extended period of limitation could not, therefore, have been invoked. While holding that the appellants are liable to service tax for services rendered by them as sub contractors, the same can be confirmed only within the normal period of limitation - Appeal allowed in part. - Service Tax Appeal No. 50889 of 2017 - FINAL ORDER NO. 50436/2023 - Dated:- 10-4-2023 - MR. DILIP GUPTA, PRESIDENT AND MS. HEMAMBIKA R PRIYA, MEMBER (TECHNICAL) Shri Varun Gaba, Advocate for the Appellant Shri Rajeev Kapoor, Authorized Representative of the Department ORDER The instant appeal has been filed to assail the Order-in-Appeal No. 173/ST/Appeal-I/2016-17 dated 01.02.2017, wherein the demand of Rs. 19, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. The Adjudicating Authority confirmed the demand vide Order-in-Original No. 10/RG/DIV-II/2013 dated 08.02.2013, wherein the demand was confirmed and penalties were imposed. Aggrieved by the order, the appellant preferred an appeal before the learned Commissioner (Appeals) who vide the impugned order rejected the appeal and upheld the Order-in-Original. 5. Learned counsel for the appellant stated that the appellant worked as sub-contractor and he submitted that the principal contractors to whom the appellant rendered services had paid the service tax for services received and the liability stood discharged by the principal contractor. To substantiate his statement, he produced letters from the principal contractors wherein it was stated that they had paid the service tax. He also submitted that the department has confirmed the demand of service tax despite the fact that the same would be available as Cenvat credit to the principal contractor for the tax paid on the services performed by the appellant. Service tax is in indirect tax and its burden is to be borne by the service recipient, not by the service provider. Even though it is a settled principal that contrave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one through the arguments of the learned counsel and learned authorized representative. We note that the period of dispute is from the year 2007-08 to 2011-12. We note that the issue is no longer res integra as the same has been decided by a Larger Bench in the case of Commissioner of Service Tax, New Delhi vs. Melange Developers Private Limited [2022(33) G.S.T.L. 116(Tri.- LB)] . The relevant paragraphs of the Larger Bench decision are reproduced hereinafter: 8. It is w.e.f. 01 June, 2007 that sub-section (zzzza) was inserted in Section 65(105) of the Act in relation to execution of Works Contract . Taxable Service under Section 65(105)(zzzza) is defined as : 65(105)(zzzza) - to any person, by any other person in relation to the execution of a works contract, excluding works contract in respect of roads, airports, railways, transport terminals, bridges, tunnels and dams. Explanation For the purposes of this sub-clause, - works contract means a contract wherein, (i) transfer of property in goods involved in the execution of such contract is leviable to tax as sale of goods, and (ii) such contract is for the purposes of carrying out, (a) erecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T Credit Rules, 2002 and Service Tax Credit Rules, 2002, the Central Government framed the CENVAT Credit Rules, 2004. It is, therefore, clear that every person (which would include a sub-contractor) providing taxable service to any person (which will include a main contractor) shall pay Service Tax at the rate specified in section 66 in the manner provided for. The manner has been provided for in the CENVAT Credit Rules of 2004. Input Service has been defined to mean, any service used by a provider of output service for providing an output service. Output Service has been defined to mean any service provided by a provider of service located in the taxable territory. Rule 3 stipulates that a provider of output service shall be allowed CENVAT Credit of the Service Tax leviable under Section 66, 66A and 67B of the Act. Thus, in the scheme of Service Tax, the concept of CENVAT Credit enables every service provider in a supply chain to take input credit of the tax paid by him which can be utilized for the purpose of discharge of taxes on his output service. The conditions for allowing CENVAT Credit have been provided for in Rule 4. The mechanism under the CENVAT Credit Rules also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b-contractor in pursuance of the contract. 9. We note that the learned counsel for the appellant has argued on the ground of limitation also. It is noted that during the relevant period, the issue as to whether a sub-contractor has to pay service tax separately even when the main contractor had discharged service tax on the very same services was subject matter of litigation before several appellate fora. The Tribunal in its decisions in the case of M/s. Semac Pvt. Ltd. Vs Commissioner [2006(4) STR 475(Tri)] M/s. Shivhare Roadlines Vs Commissioner [2009(16)STR 335(Tri)] and M/s. Urvi Construction Vs Commissioner [2010(17)STR 302 (Tri)], had held that sub-contractors are not liable to pay service tax. As there were conflicting views, the issue was referred to Larger Bench. In M/s. Max Logistics Ltd. v. Commissioner of Central Excise, Jaipur [2017 (47)STR 41 (Tri. - Del.)], the question as to whether extended period of limitation can be invoked on the above issue was decided as below : 11. Considering the above discussions and analysis, the service tax liability on the appellant cannot be contested as invalid. We uphold the findings in the impugned order regardin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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