TMI Blog2024 (4) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... services are not the services specified in the notification No 30/2012-ST and thus are not the services on which the appellant was required to discharge the tax liability under partial reverse charge mechanism. The service provider who is also registered with the Department was required to discharge the service tax liability under these category. Invoice show the complete transactions, service tax liability has been correctly discharged in the manner as prescribed under law. It is settled law that classification of service from one category to another category could not have been altered at the end of recipient of service to demand service tax under some other category of taxable service. There are no merits in the demand made by the impugned order and the same is set aside - As the demand has been set aside so is the penalty imposed - appeal allowed. - HON BLE MR. P. K. CHOUDHARY , MEMBER ( JUDICIAL ) And HON BLE MR. SANJIV SRIVASTAVA, MEMBER ( TECHNICAL ) Shri Atul Gupta, Advocate for the Appellant Shri Sandeep Pandey, Authorised Representative for the Respondent ORDER SANJIV SRIVASTAVA : This appeal is directed against Order-in-Appeal No.NOI-EXCUS-001-APP-2041-17-18 dated 28/0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all the Carpets, upholstery and other items requiring vacuum cleaning: Perform scrubbing and cleaning of all the hard floor of the office areas: Disinfect all the telephone sets ; Do cleaning and dusting of all the partitions of the workstations on the office area ; Do the cleaning/washing of all the floor mats:; Thoroughly clean all the misc. items i.e., fire-fighting, accessories. fixtures, plant boxes, notice boards, paintings etc ; Provide all the required consumables, materials, products and machinery to perform the above : 2.4 For the above service providers deploy its persons who performed the duties in the premises of the Appellant, under direct control and supervision of the Service Provider. All the administrative work such as appointment letter, joining formalities, leave approval etc. are all responsibilities of the Service Provider and the Appellant has no role whatsoever in it. The Service Providers have been paying service tax for the said service by treating the same as house-keeping service. 2.5 During the course of audit it was observed that the services received by the appellant were classifiable under the category of manpower supply services, on which they were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enalties imposed cannot be sustained. 3.3 Learned authorized representative re-iterated the findings recorded in the impugned order 4.1 We have considered the impugned orders along with the submissions made in appeal and during the course of argument. 4.2 It is a case of the appellant that they had been paying the service tax in respect of all the services received to the provider of service tax, who has inter-deposited the service tax. Taking note of the above contention Commissioner (Appeals) in the impugned order has observed as follows:- Further the case laws quoted by the appellant are not relevant to the facts of the case. It was also contended that since service provider had paid tax the tax cannot be demanded from the appellant. In this regard, I find that for any excess payment of tax by the service provider, option of Refund was always open but tax paid by him cannot be adjusted against the liabilities of the Appellant. From the above observations it is evident that the fact of payment of service tax under forward charge by the service provider is not in dispute. 4.3 It is observed that the facts of the payment of service tax by the appellant to the service provider is we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the provider under the cleaning service‟ which is not the listed service. We also note that the recipient of service is taking credit on such tax paid to the Government and it is not open to the recipient to reclassify the service when the tax has been paid already under a particular category by the provider of service. Neither the appellant nor the officers in the jurisdiction of the appellant have legal sanction to revise classification of service received, even if the said classification is thought to be made incorrectly by the provider of service. The correct course will be to get the classification corrected with valid basis at the source and to get the documents to that effect. We note that the invoices issued by the provider of service indicate that service tax registration under cleaning service‟ though the description of service in the body of the invoice is indicated as marble maintenance‟. As mentioned above, the classification and categorization of service cannot be changed at the end of the recipient. In case of Pacific Exports [2013 (13) STR 41 (T-Ahmd)] Ahmedabad bench has held as follows: 3 ..Further, what is required to be examined is as to whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a limited indulgence in the matter as under and for the following reasons : (a) ...... (b) There is also some force in the contention of the assessee that the entire amount due by way of tax having already reached the Exchequer, the assessee could not have been called to make the payment once over; petitioners had availed manpower services and in terms of Section 68(2) of the Finance Act, 1994, 50% of the tax due was paid by the assessee and the remaining 50% was remitted by the service provider; however, w.e.f. 20-6-2012 vide Notification No. 30/2012-S.T., this ratio was altered to 75:25 upto 1-4-2015 between the consumer the service provider; further, it was changed to 100% qua the consumer w.e.f. 1-4-2015; however, inadvertently, the Assessee continued to pay 50% and the service provider paid the remaining 50%; thus, whatever is due to ceaser has reached his hands, is true; in fact, the C.B.E. C. vide Circular No. 341/18/2004 had clarified that the reverse charge mechanism should not lead to double taxation; in other words, once the tax liability is discharged regardless of the persons who discharge, the assessee cannot be asked to pay the tax again. Speed and Safe Courier Serv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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