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TMI Blog2023 (12) TMI 1305X X X X Extracts X X X X X X X X Extracts X X X X ..... . The parties were heard on 14.12.2023. The facts having been narrated in the Order recorded by brother Members, I do not wish to repeat the same. 3. The Learned Counsel Ms A.S.K. Swetha appeared and argued for the Appellant. It is submitted that once the tax has already been collected at the end of the main contractor, the same cannot be taxed again in the hands of the sub-contractor as the services which were supplied in execution of the contract whether in respect of the work assigned to the sub-contractor or work executed by the Principal Contractor would form one transaction only i.e; there is only one taxable event. Once the main contractor has already paid the service tax on such transaction, a separate service tax liability in the hands of the appellant - sub-contractor on the same contract is not legally sustainable as there were no two services provided i.e; there is only one taxable event. The Learned Counsel relied on the decision rendered by Jurisdictional High Court of Andhra Pradesh in the case of Larsen & Toubro Ltd., & ANR Vs State of Andhra Pradesh [2006 (10) TMI 377 (AP)]. It is submitted that the said decision was upheld by the Hon'ble Apex Court as reported in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... main contractor which has suffered tax at the hands of the main contractor, cannot be subject to sales tax again at the hands of the sub-contractor as it would be a case of double taxation. 3.5 The Learned Counsel drew assistance from the decision in the case of Nana Lal Suthar Vs CCE, Jaipur-I [2015 (9) TMI 1446 - CESTAT, New Delhi] to support her contentions. The decisions in the case of M/s Power Mech Projects Ltd., Vs CC, Guntur [2016 (9) TMI 844 - CESTAT, Hyderabad] was also referred. 3.6 The Learned Counsel argued that the Larger Bench decision in the case of CST Vs Melange Developers Pvt Ltd., (supra) would not be applicable as the issue as to whether there is a single service or multiple services involved in the execution of works contract which were sub-contracted to the appellant - subcontractor, has not been discussed by the Larger Bench. This issue is decided by the Hon'ble High Court of Andhra Pradesh in the case of Larsen & Toubro Ltd., (supra - in sales tax) as affirmed by Hon'ble Apex Court. It is submitted that the decision rendered in the case of Vijay Sharma & Co. Vs CCE, Chandigarh referred by Larger Bench in Melange Developers Pvt Ltd., would also apply to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ger Bench in the case of Melange Developers Pvt Ltd., would apply. 4.3 The Learned AR argued that the decision rendered by Larger Bench in the case of Vijay Sharma & Co. Vs CCE, Chandigarh [2010 (4) TMI 570 - CESTAT, New Delhi - LB] is of no assistance to the Appellant. In para 9, the Larger Bench has categorically held that if service tax is paid by sub-broker in respect of same taxable service by the stock broker, then the stock broker is entitled to credit. In para 10 the matters were remanded to respective Original Authorities to verify whether stock brokers have paid on behalf of sub-brokers and if so to reduce the demand to that extend by passing fresh orders. It was only a concession given. 4.4 It is submitted that pursuant to the decision of Larger Bench in Melange Developers Ltd., the Tribunal in the case of CST, Delhi Vs C P System Pvt Ltd., [2023 (71) GSTL 70 (Tri-Del)], Vinoth Shipping Services Vs CST, Tirunelveli [2021 (55) GSTL 313 (Tri-Chennai)] and Synergy Engineers Group Pvt Ltd., Vs C, CE & ST, Bhopal [2023 (73) GSTL 546 (Tri-Del)] had held that sub-contractor is liable to pay service tax even if main contractor has discharged the liability. The Learned AR praye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "assessee" as a person liable to pay the service tax and includes his agent. Rule 2(1)(d) of Service Tax Rules 1994 defines "person liable for paying service tax". As per the said Rule, in respect of services other than in Rule (2)(1)(d)(i), it is the provider of service who is the person liable to pay service tax. When the law fixes the liability to pay tax on a particular person, the parties cannot mutually agree to absolve from liability or shift the liability to another. The activity of providing a taxable service being the taxable event, the subcontractor cannot escape the liability even though the main contractor has paid his part of the liability on the gross amount charged. As already stated as the main contractor being eligible to avail Cenvat Credit there is no situation of double taxation. The issue had been referred to Larger Bench of the Tribunal due to the conflicting views taken by different Benches. The decisions in the case of Larsen & Toubro Ltd., as affirmed by Hon'ble Apex Court and the decision in the case of Larsen & Toubro Ltd., [2016 (9) TMI 519 (SC)] being decisions rendered in the context of VAT Law, as well as the situation of main contractor not eligibl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of input tax credit and not being rendered under service tax law, the decision in the case of Melange Developers Ltd., having decided the exact issue, would apply. Further, Melange Developers in para 28 has indeed noted the decision rendered under VAT law. In the case of M/s Om Sai Fabricators Vs CCE & ST, Raigad [2022 (10) TMI 60 - CESTAT Delhi] which is relied by Department, one of the contention raised by assessee (para 3.2) was that as the main contractor has paid service tax the subcontractor is not liable to pay the tax. The Tribunal upheld the demand (para 4.3) against which assessee approached Hon'ble Apex Court and vide judgment reported in [2023 (6) Centax 210 (SC)] the decision of Tribunal which relied upon Melange Developers Ltd., was affirmed. 5.7 The Tribunal in very recent decisions as pointed by the Department has followed the decision in the case of Melange Developers Ltd., to hold that the sub-contractor is liable to pay service tax even if the main contractor has discharged service tax on the contract value. Judicial propriety makes it binding to follow the Larger Bench decision in order to reduce conflict of decisions. 5.8 In my view, the decision of Larger Be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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