TMI Blog2023 (7) TMI 362X X X X Extracts X X X X X X X X Extracts X X X X ..... ntractor has discharged Service Tax liability on the activity undertaken by the sub- contractor in pursuance of the contract. Thus, there are no hesitation to hold that the appellant/sub-contractor is liable to pay the Service Tax even if the main contractor has discharged the liability. The issue on merits is found against the assessee and in favour of the Department. Extended period of Limitation - HELD THAT:- The issue whether in such cases extended period of limitation can be invoked or not was also considered by various benches of Tribunal and in this regard the Delhi Tribunal in the case of M/S MAX LOGISTICS LIMITED VERSUS CCE, JAIPUR [ 2016 (9) TMI 1024 - CESTAT NEW DELHI] where it was held that the service tax liability of both RSIC and the appellant has common source agreement. As such, we find the demand for extended period is not sustainable in the present case - extended period cannot be invoked to demand service tax from the appellant and in the present case the entire demand is barred by limitation as the demand pertains to the year 2004-05 and 2005-06 whereas show cause notice was issued on 28.03.2009 which is completely time barred. Appeal disposed of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant being a sub-contractor is not liable to pay service tax when the main contractor has paid the service tax on the entire work. The appellant has also attached the copies of letter received from their main contractor showing that the service tax has been paid by them on the entire activity. The appellant has also relied upon the trade notice 98 ST dated 14.10.1998 and various other decisions of the Tribunal wherein it has been held that the sub-contractor is not liable to pay service tax on the services provided by it when the main contractor has paid the service tax on the entire activity. For this submission, he relied upon the following decisions as under:- Vinoth Shipping Services Vs. CCE- 2021 (55) GSTL 313 (Tri.-Chennai) Semac Pvt. Ltd. Vs. CCE 2006 (4) STR 475 (Tri.-Bang.) Koch-Glitsch India Ltd. Vs. CCE 2009 (13) STR 636 (Tri.-Ahmd.) Jac Air Services Pvt. Ltd. Vs. CCE 2013 (31) STR 155 (Tri.- Delhi) Larsen Toubro Ltd. Vs. CCE 2007 (211) ELT 513 (S.C.) Jaiprakash Industries Ltd. Vs. CCE 2002 (146) ELT 481 (S.C.) Continental Foundation JT. Venture Vs. CCE 2007 (216) ELT 177 (S.C.). 5. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n subjected to Service Tax at the hands of the main contractor. However, since the appellant, as a sub-contractor has provided services to the main contractor, is liable to discharge Service Tax on the consideration received from the main contractor namely, M/s. ACL. As correctly submitted by the Learned Authorized Representative for the Department, the main contractor would then be eligible to take credit of such Service Tax paid by the appellant as these are input services for the main contractor. This issue is no longer res integra and is settled by the decision of the Larger Bench of the Tribunal in the case of Commr. of S.T., New Delhi v. M/s. Melange Developers Pvt. Ltd. reported in 2020 (33) G.S.T.L. 116 (Tri. CB). It was observed as under: 15. It is not in dispute that a sub-contractor renders a taxable service to a main contractor. Section 68 of the Act provides that every person, which would include a sub-contractor, providing taxable service to any person shall pay Service Tax at the rate specified. Therefore, in the absence of any exemption granted, a sub-contractor has to discharge the tax liability. The service recipient .e. the main contractor can, however, avail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evade payment of duty in such situation. The appellants relied on various case laws to reiterate their views. We find that the appellant is having a strong ground regarding the question of time- bar. It is to be noted that all invoices, for full consideration, have been raised by RSIC and the amount collected from the clients [importers and exports] were subjected to service tax which was deposited to the Government. RSIC in turn are paying certain amount to the appellants to get the services in these ICDs. In such situation, there is a clear possibility for a bona fide belief that as the whole amount has been subjected to service tax the amount received by the appellant may not be liable to service tax in connection with the services rendered by them. The issue involved has been a subject matter of interpretation by the Tribunal and High Courts. In fact the earlier Circular issued by the Board, covering the period prior to the introduction of Cenvat Credit Rules gave an impression that when the main service provider discharged the service tax on gross value there may not be tax liability on the sub-contractor rendering similar service to the main contractor The Tribunal in vari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me and also considered various decisions given by the Tribunal and thereafter held that extended period of limitation cannot be invoked to demand service tax in such cases. 12. In this regard, it is relevant to reproduce the said findings of the Tribunal in para 5.2 as under: On limitation also we agree with the argument of Ld, Counsel. We find that during the relevant period there were various Circulars and trade notices by the Commissionerate clarifying that where the principle service provider discharged his service tax liability on the entire value of the services, a separate liability cannot be imposed against the sub-contractor. The said Circulars stands taken note of by the Tribunal in various judgments and its stand held that where the entire service tax has been paid on the full consideration of the services, the sub-contractors' liability would not arise to pay service tax again on the part of principle service. One such reference can be made by following circulars: TRU letter F. No. 341/18/2004-TRU (Pt.) dated 17-12-2004 - Circular No. 23/3/97-5.T., dated 13-10-1997 - Master Circular No. 96/7/2007-ST dated 23-8-2007 In fact, also from variou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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