Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Dept. Can’t Classify Product as Zarda Scented Tobacco After Repeatedly Approving It As Chewing Tobacco: CESTAT *  Mere Uploading Of GST Order On Portal Is Not “Valid” Service: Tripura HC *  CGST Can Proceed Even If SGST Closed Similar Case Earlier: Delhi HC *  SC upholds 28% GST on online gaming with retrospective effect. *  West Bengal Govt cuts E-way Bill Threshold limit to Rs. 50,000 for intra-state goods movement. *  Criminal Prosecution Under Central Excise Act Can’t Continue After CESTAT Sets Aside Duty Demand on Merits: Punjab & Haryana High Court. *  Madras High Court Quashes GST Assessment Orders for Denial of Personal Hearing; Remands Matter Subject to 10% Deposit *  Ex Parte GST Order: Madras High Court Directs Immediate Removal of Bank/ITC Attachment Upon 25% Deposit *  J.K. Cement Receives GST Demand Order of Rs 8,02,113/- from Ahmedabad Tax Authority *  Delhi Police EOW Busts Alleged Rs. 128 Crore GST Fake Invoice Network. *  REPLY TO SCN CAN’T BE TREATED AS “EMPTY FORMALITY”: ORISSA HIGH COURT QUASHES GST DEMAND OF RS. 57.30 LAKH *  Challenge to CGST Provisions restricting ITC to Bonafide Purchasers : Allahabad HC issues notice *  CBIC Notifies Revised Customs Tariff Values for Edible Oils, Gold, Silver, Brass Scrap and Areca Nuts *  Delhi HC Orders Removal of GST Attachment After Statutory 1 Year Period Expired *  GSTAT Extends Relaxed Appeal Filing Guidelines till December 31, 2026 *  AO fails to Provide Import - Export Data from DGFT to Taxpayer for Reconciliation *  Gold, Silver Imports To Get Costlier As Govt Raises Customs Duty To 10%  *  GSTAT Enables Pre-Payment Access to Document Upload and Checklist for GST Appeal Filing *  GST Portal Restrictions Can’t Override Statute: Gujarat HC Allows Cross-State Transfer Of CGST ITC After Amalgamation *  Centre Revises HS Codes for Large Diameter Steel Pipes Used in Oil & Gas Pipelines *  Customs Duty Liability Arises On Warehouse Clearance Date: Supreme Court *  Government lifts export ban on de-oiled rice bran *  CESTAT Grants 12% Interest on Pre-Deposit for Investigation from Date of Deposit till Refund and Denies Interest on Interest. *  Government Overhauls GST Classification Framework for Non-Alcoholic Beverages; Fruit Juice Drinks, Milk-Based Beverages and Caffeinated Drinks to Attract Revised 5% and 40% GST Rates from May 1, 2026 *  India’s gross GST collections hit a record Rs 2.42 lakh crore in April, up 8.7% *  Customs clearance stalled, revenue hit over MRP dispute *  Shipping Corporation explores Middle East routes as Hormuz tensions disrupt cargo movement *  India, Kenya signs MoU for exchange of pre-arrival customs information *  No demand of Taxes under Reverse Charge if Tax Already Discharged by Service Provider under forward charge *  The India-New Zealand Free Trade Agreement, signed "once-in-a-generation" deal that eliminates tariffs on 100% of Indian exports to New Zealand
Subject News *  Consignment Sales Can’t Be Reclassified as Inter-State Sales Based on Pre-Agreement Evidence: CESTAT *  Exporter Can’t Be Denied Advance Authorization Benefit Due To ICEGATE Technical Glitch: Delhi High Court *  No GST Demand For Mere Wrong Set-Off Of IGST Credit Under CGST And SGST Heads: Kerala HC. *  Cenvat Credit Can’t Be Denied on Input Services Having Nexus With Manufacturing Activities: CESTAT *  Pending Proceedings Can’t Survive Without Saving Clause: Calcutta High Court Quashes GST Demand of Rs. 6.28 Crore After Omission of Rule 96(10) *  Madras HC Quashes GST Demands on TASMAC (Tamil Nadu State Marketing Corporation) Bar Licence Fee *  GST Proceedings Cannot Survive Omitted Rule Without Saving Clause: Calcutta HC *  Provisional Release Can’t Be Denied Solely On Dept. Suspicion Of Misclassification And Undervaluation Of Imported Goods: CESTAT *  Businesses Should Not Be Kept Outside GST Regime Without Due Process: Gauhati High Court *  Punjab & Haryana HC Directs Reconsideration of Contractors’ Claim for Additional GST Payment After Tax Rate Hike From 12% to 18% *  S. 108 Statements Can’t Be Sole Basis Without Following Section 138B Procedure: CESTAT *  Bombay High Court Frames Key Questions on Mandatory Distribution of ITC U/s 20 CGST Act *  Filing of Annexure-B for Refund Applications involving Accumulated ITC using the offline utility in GST portal: GSTN *  No Service Tax on Parent Company’s Un-Invoiced Cost Allocations Without Actual Service or Consideration: CESTAT  *  Calcutta High Court Upholds GST Classification of Polypropylene Leno Bags as Plastic Products *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  GSTAT Issues Major Bench Allocation Framework; All Appeals to First Go Before Division Bench *  ITC Blocking Without Reasoned Order Violates Rule 86A; Punjab & Haryana HC Directs Release of Credit *  Allahabad HC Refuses Bail to CGST Superintendent In Rs. 70 Lakh Bribery Case *  S.130 Can’t Be Invoked Without Prior Tax Determination U/s 73/74: Allahabad High Court Quashes GST Confiscation Proceedings *  SC grants Bail to Rs 54cr GST case  *  Karnataka HC Sets Aside Duplicate GST Orders, Orders Fresh Hearing on GSTIN Cancellation *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  Transfer Of Unutilized ITC After Amalgamation - Supreme Court Issues Notice *  PUNJAB & HARYANA HC QUASHES GST CANCELLATION NOTICE FOR FAILURE TO PROVIDE CBIC ENQUIRY REPORT *  LICENSE FEE, TECHNICAL ASSISTANCE CHARGES NOT INCLUDIBLE IN CUSTOMS VALUE UNLESS THEY ARE A CONDITION OF SALE: CESTAT *  DELHI HC ORDERS REMOVAL OF GST ATTACHMENT AFTER STATUTORY 1 YEAR PERIOD EXPIRED *  CUSTOMS BROKER CAN’T BE FAULTED JUST BECAUSE EXPORTER’S GST REGISTRATION WAS PREVIOUSLY CANCELLED: CESTAT   *  Supreme Court Dismisses Review Plea Against Delhi HC Ruling Holding Real Operator Behind Fake GST Firms Liable As ‘Taxable Person  *  GST Appeal Can’t Be Rejected Merely Because DRC-07 Was Not Uploaded On Portal: Bombay High Court  

Comments

Print   |    |  Comment

PJ/CASE LAW/2014-15/2480

whether the respondant is entitled for refund when he has paid the tax as a sub contractor and where main contractor has also paid the tax for the same transaction?

Case:- COMMISSIONER OF CENTRAL EXCISE, PUNE-III Vs M/s AKRUTI PROJECTS
 
 Citation:- 2014-TIOL-1925-CESTAT-MUM
 
Brief Facts:-The brief facts of the case are that the assessee-respondent is a service provider and is registered with the Central Excise Department under the category of ‘Commercial or Industrial Construction Service". M/s Devi Constructions Co. Pvt. Ltd. sub-contracted some of their civil work undertaken for their client to the respondent. The respondent claims that both M/s Devi Constructions and the respondent paid Service Tax on the same transaction. The tax was paid as per Notification No. 1/2006 dated 1.3.2006. The amount of tax so paid was Rs.20,34,317/-. The respondent filed a claim for refund of this amount with lower authority as the tax liability being discharged by the main contractor, they as a sub-contractor were not required to pay the tax again. A show-cause notice in January, 2008 was issued to the respondent asking them to show cause as to why their claim should not be rejected as tax was correctly paid by the respondent on the service provided to the main contractor. The lower authority rejected the claim holding that the respondent had not submitted any documentary evidence to show that they were subcontractors of M/s Devi Constructions. The jobs done by the respondent were final and no activity was carried out by the main contractor. The respondent had carried out constructions work at the site of M/s Devi Constructions as a contractor. Being aggrieved by the impugned order, the Revenue is in appeal before this Tribunal. The grounds raised by the Revenue is that the Commissioner (Appeals) have erred in allowing the refund on the ground that the main contractor who had, as per agreement with their clients, undertaken to provide service, were liable to pay tax, and the sub-contractor was under no obligation to pay tax. Hence, the Commissioner (Appeals) has failed to appreciate the law that the Service Tax on Commercial/Industrial Construction Service was imposed w.e.f. 10.9.2004 and has been defined under Section 65(109)(zzq) of the Finance Act, 1994, which defined the ‘taxable service' is a service provided, or to be provided to any person, by any other person, in relation to service to main contractor, is essentially a taxable service provider. The fact that the service provided by such sub-contractor are used by the main service provider for completion of the work, does not in any way alter the fact of providing of taxable service by the sub-contractor and accordingly, the respondent assessee as a sub-contractor is liable to pay Service Tax and the same was correctly paid by the respondent.
 
Appellant’s Contention:-The grounds raised by the Revenue is that the Commissioner (Appeals) have erred in allowing the refund on the ground that the main contractor who had, as per agreement with their clients, undertaken to provide service, were liable to pay tax, and the sub-contractor was under no obligation to pay tax. Hence, the Commissioner (Appeals) has failed to appreciate the law that the Service Tax on Commercial/Industrial Construction Service was imposed w.e.f. 10.9.2004 and has been defined under Section 65(109)(zzq) of the Finance Act, 1994, which defined the ‘taxable service' is a service provided, or to be provided to any person, by any other person, in relation to service to main contractor, is essentially a taxable service provider. The fact that the service provided by such sub-contractor are used by the main service provider for completion of the work, does not in any way alter the fact of providing of taxable service by the sub-contractor and accordingly, the respondent assessee as a sub-contractor is liable to pay Service Tax and the same was correctly paid by the respondent. The next ground is that the respondent have not recovered Service Tax paid by the main contractor and also if they have not passed on the burden of Service Tax on the customers or any other person, is for the reason that the main contractor M/s Devi Constructions, wants to avail the benefit of exemptions Notification No. 1/2006 dated 1.3.2006, wherein a condition is provided that notification shall not apply in case, ‘where the CENVAT Credit of duty on inputs or capital goods or the CENVAT Credit of Service Tax on input services, used for providing such taxable service, has been availed under the provisions of the Cenvat Credit Rules, 2004. The next ground taken is that the Commissioner (Appeals) has erred in relying on the Trade Notices No. 5/98 and 53/97 and holding that when the main contractor have discharged the Service Tax in respect of the sub-contracted service, the sub-contractor is not liable for the same. The next ground raised is that the learned Commissioner (Appeals) has overlooked the Board's Circular No. 96/7/2008-ST dated 23.8.2007, wherein it was clarified that sub-contractor is essentially a taxable service provider and accordingly, liable to pay Service Tax.
 
Respondant’s Contention:-The respondent had submitted in their reply to the show-cause notice that the sub-contractor is not required to pay Service Tax when the main contractor pays Service Tax. There were clarifications to this effect from the Board. The only condition was that both the main and sub-contractor should have provided the same service. In their case the same category of service was provided by M/s Devi Constructions and them. No tax paid was reimbursed to them by the main contractor. They had relied on some case laws also and had in their personal hearing submitted that the amount had not been recovered from the customers. C.A.'s certificate was also submitted. They had also contended that their civil contracts were in the nature of works contract which came to be taxed only w.e.f. 1.6.2007.
 
Reasoning Of Judgment:-Having considered the rival contentions, it is  find that the Notification No. 1/2006-ST is in confrontation with the charging section, Section 66 of the Finance Act, 1994 and accordingly the same is not applicable in the facts and circumstances of the case so far as the condition relating to not taking of CENVAT Credit is concerned of the service tax paid by the sub-contractor. Further, the finding of fact recorded by the adjudicating authority having not been challenged by any of the parties, and in view of the categorical finding of fact recorded, I hold the respondent assessee is entitled to refund.
 
Comment:-It is evident from Section 66 that the charging section does not provide for multi-point taxation rather provides for destination based taxation and accordingly, the tax cannot be collected twice in respect of the same transaction or services.
 
SUBMITTED BY:-SOMYA JAIN

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com