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Subject News *  Documentary evidence dominates probe, further custody unwarranted: mumbai court grants bail in Rs. 22.44 crore customs duty evasion case. *  Business premises can’t remain sealed for non-participation in GST search: Allahabad High Court. *  GST pre-deposit must be refunded proportionately when taxpayer partly succeeds in appeal: Bombay High Court. *  Supreme Court grants 30 days to file GST appeal; keeps pre-deposit issue open due to deposit in parallel CGST proceedings. *  GST demand can’t exceed amount proposed in SCN: Allahabad High Court quashes Rs. 20.47 Crore order. *  Hundreds-of-crores GST demand and heavy 10% pre-deposit no ground to bypass statutory appeal: Punjab & Haryana High Court. *  Delhi High Court refuses to entertain challenge to gold confiscation due to statutory appeal remedy and unexplained delay. *  Procedural error in customs broker licence inquiry can be rectified through remand: Delhi High Court. *  GSTR-2A mismatch alone can’t justify ITC denial without invoice-wise verification; personal hearing mandatory: GSTAT. *  GST order passed without uploading personal hearing notices violates sec. 75(4): Allahabad High Court. *  TAX EVASION - Sec. 74 GST SCN quashed for not spelling out fraud, wilful misstatement or suppression: Allahabad High Court. *  STPI’s SOFTEX certification and NoC charges taxable as business support services: CESTAT. *  Suspicion can’t replace proof: CESTAT quashes penalty in alleged gold-smuggling operation. *   Limitation runs from communication of order: Madras High Court upholds rejection of delayed GST Appeals. *  Rajasthan High Court quashes GST demand over unsigned show cause notice. *  ITC recovery upheld where supplier failed to deposit GST: Rajasthan High Court. *  Customs commissioner’s empowered to make port trust liable for duty on pilfered goods: Supreme Court. *  Rectification proceedings can’t be used to challenge an uncontested GST assessment through a writ petition: Andhra Pradesh HC. *  GST proceedings against deceased proprietor unsustainable without notice to legal heir: GSTAT. *  Mere availment of ineligible self-assessed ITC doesn’t amount to suppression without evidence of fraud or wilful misstatement: GSTAT. *  Disposal of mining overburden by entity authorised by mining lease holder constitutes taxable service: CESTAT. *  Toll plaza data not mandatory for ITC refund: GSTAT. *  Disputed GST fraud allegations require investigation: Punjab and Haryana High Court makes interim bail absolute in alleged fraud and GST fraud case. *  Non-manufacturer contractor liable to deposit excess excise duty collected from buyer: CESTAT. *  GST order can’t reject taxpayer’s reply as “not satisfactory” without reasons: Madhya Pradesh High Court. *  Uncorroborated statements can’t establish alleged diversion of duty-free goods: CESTAT. *  Erection services were not liable to service tax prior to 10th september 2004: CESTAT. *  Sec. 74 GST notice must spell out statutory ingredients for invoking extended tax demand proceedings: Allahabad High Court. *  No jurisdictional bar under section 6(2)(b) in parallel CGST SGST proceedings: Delhi High Court refuses to bypass GST appeal remedy. *  Madras High Court remits GST demand for fresh adjudication after taxpayer claims it was unaware of SCN following business closure.  

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PJ/Case Laws/2012-12/1013

Service Tax paid by Sub-contractor claiming abatement and Main Contractor claiming refund of ST paid by sub-contractor- whether allowable?

Case: Soans Construction Company Vs Commr. Of C.Ex., Mangalore
 
Citation: 2011(24) S.T.R. 315 (Tri.- Bang.)
 
Issue:- Whether service tax on Construction of Residential complex paid by both contractor and sub contractor is sustainable?
 
Brief Facts:- Appellant is a sub-contractor of M/s. SKS Group, Mangalore and undertook construction work for a project. Appellant suo motu claimed benefit of 67% abatement under Notifications 15/2004-S.T., 18/2005-S.T. and 1/2006-S.T. and paid Service Tax only on 33% of the gross taxable value of the work. The burden of this tax paid by the appellant was passed on to Main Contractor. The Main Contractor also paid Ser­vice Tax on the same work but subsequently claimed refund on the ground that their sub-contractor had paid tax on the same service.
 
Revenue issued Show Cause notice demanding Service Tax by denying appellant benefit of abatement which was availed by them while paying Service Tax on 33% of the gross value. This demand was confirmed against the assessee and an amount al­ready paid by them towards Service Tax with interest was appropriated. In addition, penalties were also imposed on the assessee under Sections 76, 77 and 78 of the Finance Act, 1994.
 
Aggrieved, appellant preferred an appeal to the Commissioner (Appeals) who upheld the order-in-original. Thereafter the appellant filed an appeal against order of Commissioner (Appeals) before Tribunal.
 
Appellant Contention: - Appellant submitted that Reve­nue is not entitled to demand Service Tax on the same subject matter from both the builder and their sub-contractor. It is submitted that, even if it be assumed that the appellant (sub-contractor) is also liable to pay the tax, they cannot be compelled to pay the tax on the gross taxable value including the cost of materi­als and goods supplied by the main contractor. It is also submitted that appellant are entitled to claim abatement from the gross value to the extent of 67% in terms of the Exemption Notifications. In this connection, the appellant has relied on decision of this Bench in the case of Kunnel Engineers & Contractors Pvt. Ltd. v. CCE, Cochin [2011 (22) S.T.R. 296 (Tri.-Bang.)].
 
Respondent’s Contention: - Revenue submitted that the appellant cannot claim abatement without including the value of the goods and materials supplied for the construction activity, in the gross taxable value. This argument is based on Explanation to Notification, which reads thus
 
"The 'gross amount charged' shall include the value of goods and materials supplied, or provided or used by the provider of the construction service for providing such service".
 
Revenue relied on judgment of Jaihind Projects Ltd. v. Commis­sioner of Service Tax, Ahmedabad [2010 (18) S.T.R. 650 (Tri.-Ahmd.)] wherein the question whether abatement of 67% of the gross taxable value of "commercial or industrial construction service" was admissible to the assessee was considered and it was held that the benefit was not admissible if the value of the goods sup­plied to the service provider by the service recipient was not included in the gross taxable value.
 
Revenue also submitted that the present appeal is only liable to be dismissed. In answer to a query from the Bench, the respondent has opined that the refund claim of the builder is an independent matter and that the present appeal can be dealt with, without reference thereto.
 
Reasoning of Judgment:- The Tribunal held that they were unable to accept the last submission made by the Revenue. It is not in dispute that the work undertaken by the appellant was one awarded to them by the builder (Main Contractor). It is also not in dispute that whatever materials and goods were received by the builder from the benefi­ciary were transmitted to the appellant for being used in the construction service. The builder admittedly paid Service Tax on the gross taxable value including the cost of such materials.
 
The Tribunal was of the view that the refund claimed by the builder before the Original Authority is on the ground that they were not liable to pay Service Tax on the taxable value on which the sub-contractor (the present appellant) had paid tax. In the present case, the main contention raised by the appellant is that the Department cannot recover Service Tax on a given taxable value from both the builder and the sub-contractor. If that be so, the issue is very much con­nected with the one being agitated by the builder through a refund claim before the Original Authority. The Tribunal also held that the Original Authority should deal with both the matters and pass a common order. Impugned order set aside.
 
Decision:- Appeal allowed by way of remand.

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