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TMI Blog2024 (9) TMI 1414X X X X Extracts X X X X X X X X Extracts X X X X ..... r Industrial Constructions works on subcontract basis which is subcontracted to them by the Principal contractors M/s L & T etc. and service tax leviable on such services are not charged by the appellant from their Principal contractors. That the Principal/Main contractor is discharging the service tax liabilities on entire contract value awarded to them by the service receiver i.e. IOCL including the contract value of work orders sub-contracted to the appellant. The department entertained the view that the appellant is liable to pay service tax on the service rendered by them to the main contractor and are not depositing the same. On these allegations, a show cause notice was issued by invoking the extended period of limitation. After following the due process, the Ld. Commissioner has confirmed the demand along with interest and penalties. Hence, the present appeal. 3. Heard both the parties and perusal of the material on record. 4.1 Ld. Counsel for the appellant submits that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the law and the binding judicial precedents. He further submitted that the appellant bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax by the sub- contractor. As per the ratio of the said decision, the sub-contractor is liable to pay service tax even when the main contractor has discharged the service tax on the entire value of the contract. 4.4 Ld. Counsel further submits that the demand in the present case has been confirmed by invoking the extended period of limitation without fulfilling the requirement for invoking the extended period of limitation as provided in proviso to Section 73(1). He further submits that since the issue relates to interpretation of law and there were contrary decisions on either side, hence, the invocations of extended period is bad in law. For this, he relies upon the following decisions: * Vishal Engineering Company versus Commissioner of Central Excise and Service Tax, Panchkula (2023) 9 Centax 154 (Tri.- Chan). * Max Logistics Ltd. v. Commissioner of Central Excise, Jaipur, 2017 (47) S.T.R. 41 (Tri.-Del.). * Shanti Construction Company v. CCE & S.T., Gujarat reported in 2023-TIOL-223-CESTAT-AHM. 5. On the other hand, Ld. AR reiterates the findings of the impugned order and submits that this issue has been settled by the Larger Bench in the case of Melange Dev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amed thereunder, there is no reason as to why a sub-contractor should not pay Service Tax merely because the main contractor has discharged the tax liability. As noticed above, there can be no possibility of double taxation because the Cenvat Rules allow a provider of output service to take credit of the Service Tax paid at the preceding stage. XX XX XX XX XX XX XX XX XX 30. Thus, for all the reasons stated above, it is not possible to accept the contention of the Learned Counsel for the Respondent that a sub-contractor is not required to discharge Service Tax liability if the main contractor has discharged liability on the work assigned to the sub-contractor. All decisions, including those referred to in this order, taking a contrary view stand overruled 31. The reference is, accordingly, answered in the following terms A sub-contractor would be liable to pay Service Tax even if the main contractor has discharged Service Tax liability on the activity undertaken by the sub- contractor in pursuance of the contract." 10. Following the above decisions, we have no hesitation to hold that the appellant/sub-contractor is liable to pay the Service Tax even if the main co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot attract the demand for extended period. We also take note that service tax liability on the appellant when discharged will be available as a credit to RSIC which can be used by RSIC for discharging their overall service tax liability. As such, to impute motivation to the appellant for intention to evade payment of duty is not sustainable. A reference can be made to the Tribunal's decisions in British Airways v. CCE (Adjn.), Delhi reported in 2014 (36) STR. 598 (Tri. - Del.), Atul Ltd. v. CCE, Surat-Il reported in 2009 (237) E.LT. 287 (Tri. - Ahmd.). In the facts and circumstances of this case, we find that the demand for extended period is not sustainable. We have also perused the reasons recorded by the Original Authority for invoking extended period of demand. He recorded that but for the Department's investigation the non- payment of tax would not have come to the notice. Further, the balance sheet for certain years have not been furnished in time by the appellant which was obtained from Registrar of Companies. As such, it was held that the appellants wilfully suppressed material facts. We find that the service tax demand against the appellant was sought to be confirm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -AHM -CCE, Indore v. Shivhare Roadlines - 2009 (16) S.T.R. 335 (Tri.- Del.) =2009-TIOL-526-CESTAT-DEL - Harshal & Company v. CCE, Vadodara - 2008 (12) S.T.R. 574 (Tri.- Ahmd.) - Semac Pvt. Limited v. CCE, Bangalore-2006 (4) S.T.R. 475 (Tri.- Bang.) 2006-TIOL- 1546-CESTAT-BANG - Shiva Industrial Security Agency v. CCE, Surat - 2008 (12) S.T.R. 496 (Tri.-Ahmd.) - Synergy Audio Visual Workshop P. Ltd. v. CST, Bangalore 2008 (10) S.T.R. 578 (Tri.-Bang.)= 2008-TIOL-809-CESTAT-BANG - OIKOS v. CCE , Bangalore 2007 (5) S.T.R. 229 (Tri-Bang)= 2006-TIOL-1760-CESTAT-BANG In the Tribunal's decision in the case of OIKOS v. CCE, Bangalore - III reported in 2007 (5) S.T.R. 229 confirmed against the sub- contractor. To the similar effect the Tribunal decision in the case of Viral Builders v. CCE, Surat reported in 2011 (21) S.T.R. 457 (Tri.-Ahmd.) =2010-TIOL-1575-CESTAT- AHM observed that service stands provided only once and as such tax is not payable twice for the same service. Further in the case of Sunil Hi-Tech Engineers Ltd. v. CCE, Nagpur reported in 2010 (17) S.T.R. 121 (Tri.-Mumbai) 2009-TIOL-1867-CESTAT-MUM, the service tax confirmed against the sub-contractor wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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