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TMI Blog2024 (10) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... chanism. However during the relevant period the service provider M/s. Kalpataru Job Management has paid service tax on the entire 100%value of Man Power Supply Agency Service. The case of the department is that since the appellant is liable to pay 75% of the service tax on the Man Power Agency Service as a recipient of service under reverse charge mechanism, demand of service tax was confirmed. 2. Shri Amber Kumrawat, Learned Counsel appearing on behalf of the appellant at the outset submits that eventhough, the appellant during the relevant period is liable to pay 75% of the service tax under reverse charge mechanism but the entire service tax has been paid by the service provider M/s. Kalpataru Job Management and for which the invoice was raised by the service provider showing 100% payment of service tax. Therefore, the service tax cannot be demanded twice from the appellant. This issue has been considered in the various following judgments:- CST, Meerut-ll v Geeta Industries Pvt. Ltd. 2011 (22) STR 293 (Tri.- Del) Angiplast Pvt. Ltd. v CST, Ahmedabad 2013 (32) STR 628 (Tri.- Ahmd) Navyug Alloys Pvt. Ltd. v CCE &Cus 2009 (13) STR 421 (Tri.-Ahmd) Umasons Auto Compo Pvt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act 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 well established by the invoices which has been produced before us and were also produced before the Original Adjudicating Authority. Some sample invoices are reproduced bellow for further reference : - 4.4 On perusal of these invoices it is evident that the service provider is a registered service provider, registered with the department and has issued the invoices to the appellant indicating the amount of service tax, educations cess and higher education - cess. In the education guide issued by the revenue following has been stated : "10.1.2 What does a service provider need to indicate on the invoice when he is liable to pay only a part of the liability under the partial reverse charge mechanism? The service provider shall issue an invoice complying with Rule 4A of the Service Tax Rules 1994. Thus the invoice shall indicate the name, address and the registration number of the service provider; the name and address of the person receiving taxable service; the descr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntioned 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 whether service tax was paid under the category of Port services and not under the relevant head, or not. It is a settled law that re-classification of the services cannot be done at the recipient's end......" 4.6 Reverse charge mechanism under Service Tax was introduced w.e.f 01-01-2005 vide Notification No. 36/2004-ST and with effect from 01-07-2012 a new mechanism of reverse charge (RCM) and partial reverse charge or we can call it joint charge (PRCM/JCM) was introduced vide Notification No. 30/2012-ST which was further amended by Notification No. 45/2012-ST, 10/2014-ST and 7/2015-ST. Power was drawn from Section 68(2) of Finance Act, 1994, to mainly ensure more tax compliance as it was difficult to collect service tax from various unorganized sectors. In any case this is not for charging taxes twice on the same transaction. Board has circular No 51/13/2002-ST dated 07.01.2003 clarified as follows: "2. The matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 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 Service [2010 (18) STR 550 (Ker) ] ".....In terms of Section 67, the entire amount collected from the customers for rendering courier service is subject to tax at the hands of agent/franchisee. In our view, if a service falls under two heads, there is no provision in the Finance Act, 1994 to tax the very same service charges twice under two heads. In this case, what was done is double assessment on part of the service charges collected, for rendering courier service at the hands of the appellant...." Geeta Industries P Ltd [2011 (22) STR 293 (T-Del)] "4. There is no dispute that service in question has suffered tax. The only dispute is the person who shall pay the service tax. When the treasury has not been affected by virtue of collection of service tax from the service provider as is the case of the Revenue and there is no legal infirmity in the decision of the learned C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is claimed for cost of goods used in the rendering services. Similarly as evidenced from letter issued by M/s. Ayoob& Co., they also have not availed any Cenvat Credit and no deduction was claimed for cost of goods used in rendering the services. 7. We find that the claim of the appellant is that once the transporter had paid some amount of service tax, it can be adjusted towards the tax liability of the appellant. The issue was considered by the Tribunal in the matter Navyug Alloys Pvt. Ltd. Vs. Commr. ofC.Ex. &Cus., Vadodara-II 2009 (13) S.T.R.421 (Tri.-Ahmd.), where on similar facts and circumstances, the Tribunal held that once tax is already paid on the service, it is not open to the department to confirm the same against the appellant. Similarly in the matter of M/s. Agniplast Pvt. Ltd., 2013 (32) S.T.R.628 (Tri.-Ahmd.) where it is held that : - 8. On perusal of the records, I find that there is no dispute that the amount of Service Tax liability which is contested before the Bench is in respect of the services rendered by M/s. NaranjiPeraj Transport Co., M/s. PathikRoadlines and Transport Corporation of India Ltd. On perusal of the certificates issued by these transpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vehement contention of learned counsel for the Assessee that the Assessee has made a full & true disclosure as is forthcoming at paragraph No. 6.18 of the impugned order arguably warranting dropping of punitive proceedings especially when the Assessee has already paid Rs. 2.88 Crore. (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. 20.06.2012 vide 30/2012-ST, this ratio was altered to 75:25 upto 01.04.2015 between the consumer & the service provider; further, it was changed to 100% qua the consumer w.e.f. 01.04.2015; 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 CBEC vide Circular No. 341/18/2004 had clarified that the reverse charge mechanism should not lead to double ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Certiorari issues quashing the impugned part of the orders; matter is remitted to the Settlement Commission for consideration afresh, in accordance with law and after notice to the stakeholders. All contentions are kept open. Costs made easy." In the case of Lohagiri Industries Pvt. Ltd, Bangalore Bench of this Tribunal dealing with the identical issue held as under : - " 4. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without considering the factual and legal position. He further submitted that the appellant received the security services from various security agencies and was required to pay 75% of the service tax under "Reverse Charge Mechanism". He further submitted that the appellants have paid 75% of the service tax amount to the service provider and in turn, service provider have paid service tax to the Government Account, since the appellant was not registered with the Service Tax Department under the category of Security Services. In support of this submission, he has produced the copy of the Challan, ST-3 Returns and the letters of service provider. He further submitted that the demand ..... X X X X Extracts X X X X X X X X Extracts X X X X
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