TMI Blog2023 (12) TMI 1005X X X X Extracts X X X X X X X X Extracts X X X X ..... ower but it is on the quantum of work and the rate is also as per cubic meter of Scaffolding, Erection Dismantling, therefore, the service is undisputedly does not fall under Manpower Agency Service but falls under Erection Installation Commissioning Service. The Appellant considering the service as Manpower Recruitment Supply Agency Service, availed the abatement of 75% and paid the service tax only on 25%. However it is not in dispute that on 75% of the Service provided by the appellant, the service recipient has discharged the service tax, which is clear from the work contract as well as the confirmation given by M/s Leo Coats (I) Private Limited. The appellant s service is classifiable under Erection Installation Commissioning Service but the fact remains that on the entire service the service tax was paid i.e. 25% by the appellant and on 75% by the service recipient. Since the entire service has suffered the service tax only for technical reason the department has no right to demand the service tax twice, therefore, on this ground, the service tax demand on the basis of is not sustainable. This issue has been considered time and again and in the following judgments, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RAMESH NAIR In both the appeals common issue involved is that whether the service provided by the appellant i.e. Erection Installation of Scaffolding can be classified under manpower supply or recruitment agency service or Erection Installation and Commissioning Service consequently, whether the appellant is entitled for exemption from service tax on the 75% of service charges under Manpower Recruitment Supply Agency Service. If at all the service is classifiable under Erection and Installation and Commissioning Service whether the service tax paid on 75% of the service charge by the recipient of service to be considered as good payment of Service Tax. Despite this whether the appellant can be demanded service tax twice on 75% of service charge. Apart from above common issue in appeal No. 12079 additional following issues are also involved (i) whether the service provided to Reliance Industries Ltd. (SEZ) Jamnagar is taxable or otherwise and (ii) Service tax demand on differential value arising between the figure shown as credit of service charge in the books of accounts and ST-3 return on account of credit shown twice once against receipt of service charge and second the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubt that the service does not fall under the Man-power recruitment or supply agency service. Moreover, the job is not on the basis of man hour or number of man power but it is on the quantum of work and the rate is also as per cubic meter of Scaffolding, Erection Dismantling, therefore, the service is undisputedly does not fall under Manpower Agency Service but falls under Erection Installation Commissioning Service. The Appellant considering the service as Manpower Recruitment Supply Agency Service, availed the abatement of 75% and paid the service tax only on 25%. However it is not in dispute that on 75% of the Service provided by the appellant, the service recipient has discharged the service tax, which is clear from the work contract as well as the confirmation given by M/s Leo Coats (I) Private Limited in the following letter : Even though we are of the view that the appellant s service is classifiable under Erection Installation Commissioning Service but the fact remains that on the entire service the service tax was paid i.e. 25% by the appellant and on 75% by the service recipient. Since the entire service has suffered the service tax only for technical reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .) Zyeta Interiors Pvt. Ltd. Vs. Vice Chairman Settlement Commission,Chennai- 2022 (58) GSTL 151 (Kar.) Nagraja Printing Mills Vs. Commissioner of Central Excise, Salem2010 (19) STR 828 (Tri.-Chennai) General Manager, J.K. Sugar Ltd. Vs. Commissioner of C. Ex., MeerutII-2016 (43) STR 292 (Tri.-All) Commissioner of Service Tax, Meerut-II Vs. Geeta Industries Pvt.Ltd.-2011 (22) STR 293 (Tri.- Del.) Angiplast Pvt. Ltd. Vs. Commissioner of Service Tax, Ahmedabad - 2013 (32) STR 628 (Tri-Ahmd.) Reliance Securities Ltd. Vs. Commissioner of Service Tax, Mumbai-II2019 (20) GSTL 265 (Tri. Mumbai) Commissioner of Central Excise, Ludhiana Vs. Ralson India Ltd. 2008 (10) STR 505 (P H) SACI Allied Products Ltd. Vs. Commissioner of C. Ex., Meerut 2009 (183) ELT 225 (S.C.)-2005 (183) ELT 225 (S.C.) Commissioner of Customs Mumbai Vs. Toyo Engineering India Ltd. 2006 (201) ELT 513 (S.C.) Reckitt Colman of India Ltd vs. Collector of Central Excise 1996 (88) ELT 641 (SC) Prince KhadiWoollen Handloom Prod. Coop. Indl. Society vs. CCE 1196 (88) ELT 637 (SC) Commissioner of C.Ex., Chandigarh vs. Shital International 2010 (259) ELT 165 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vice recipient is liable to pay service tax under the RCM, the Service Tax Rules. The said service tax has been paid to the exchequer by the service provider, who collected the same from the service receiver. 6. I find that the service tax has been confirmed against the appellant who are availing the services on the goods transport agency during the periods from 2007-08 to 2011-12. It is on record that the service tax on the said services stands paid by the transporter. It is the case of the Revenue that it was the liability of the appellant to pay the Service Tax under the reverse charge mechanism and the Service Tax paid by the transporter who provided the services, cannot be treated as a valid payment. However, the Revenue has not refunded the Service Tax paid by the transporters to them. 7. I find that the Central Board of Indirect Taxes and Customs vide TRU Clarification [***] F.No. 341/18/2004-TRU(PT), dated 17-12-2004 has clarified that if service tax due on transportation of a consignment has been paid or is payable by a person liable to pay Service Tax, Service Tax should not be charged for the same amount from any other person, to avoid double taxation. 8. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Notification No. 30/2012-S.T., dated 20-6-2012, the appellant was required to pay 75% of the Service Tax and the supplier was required to pay 25% of the Service Tax. In one case, the appellant did not pay Service Tax and supplier also did not pay Service Tax. On pointing out by the Revenue, the appellant immediately paid Service Tax and in one case the supplier itself has paid 100% Service Tax instead of 25% Service Tax and the appellant did not pay Service Tax. Therefore, a case has been booked against the appellant demanding Service Tax in terms of Notification No. 30/2012-S.T., dated 20-6-2012 @ 75% of the Service Tax on the value of manpower recruitments service received by them. Aggrieved by the said order, the appellant is before me. 3. The Ld. Counsel for the appellant submitted as the supplier of the service, itself has paid 100% Service Tax, therefore, no demand is sustainable against the appellant as the whole Service Tax on the said service has already recovered by the Revenue and no double tax can be demanded from the appellant. 3. To support his contention, he relied on the decision of this Tribunal in the case of Omeri India Pvt. Ltd. vide Order No. A/13212 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6, in such manner and within such period as may be prescribed. Further in sub-section (2) of Section 68 it is provided that notwithstanding anything contained in sub-section (1), in respect of such taxable services as may be notified (with effect from 1-7-2012) by the Central Govt., in the official Gazette, the service tax thereon shall be paid by such person and in such manner as may be prescribed at the rate specified and all the provisions of this chapter shall apply to such person as if he is the person liable for paying the service tax in relation to such service. I find that the words in respect of such taxable service as may be notified , have been inserted in sub-section (2) with effect from 1-7-2012 by the Finance Act, 2012. Thus I hold that prior to 1-7- 2012, under the provisions of Section 68(1), the tax already has been deposited by the GTA in the facts of the present case. I further hold that Rule 2(1)(d)(v) of Service Tax Rules does not override the provisions of the Act. Moreover I find that it has been clarified by C.B.E. C. in Circular No. 97/8-2007-S.T., dated 23-8-2007 - clarifying that service tax may be paid either by the consignee or by the consignor or by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same reason once the amount paid by the transport agency being service tax amount, the appellant is eligible for cenvat credit. 5. Accordingly, on both the count the impugned order is not sustainable. Hence, the same is set aside. Appeal is allowed. In view of the above judgment, which has considered various other judgments on the same issue, it is settled that once the service has suffered the service tax irrespective of anyone paid the service tax, the service tax cannot be demanded twice. Therefore, we hold that in respect of Erection Installation Commissioning Service, the service tax demand is not sustainable. Hence the same is set aside. 5. As regard, the demand on the service provided to Reliance Industries Limited (SEZ) Jamnagar Unit, it is a settled law and even as per the SEZ Act, that any service provided to SEZ is exempted from payment of service tax. In this regard in the case of CCE Patna vs Advantage Media Consultant, 2008 (10) STR 449 (Tri Kolkata), it was held as under : it is inter alia observed that service tax is an indirect tax. As per this system of taxation, tax borne by the consumer of goods/services is collected by the appellant (manu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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