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 /2016-17/3324

whether the sub contractor liable to charge Service Tax?

Case:-FURNACE FABRICA (INDIA) LTD. VersusJOINT COMMR. OF C. EX., CUS. & S.T., KOCHI
Citation:-2016 (43) S.T.R. 175 (Ker.)
Brief fact:-The petitioner-company was awarded with a civil contract work by the 3rd respondent, for a total contract amount of Rs. 15,79,93,560/-. The petitioner sub-contracted the civil and plumbing works under the above said contract to the 4th respondent, for an amount of Rs. 13,12,84,710/-. Issue involved herein pertains to levy of Service Tax. Ext.P3 invoice would indicate that Service Tax was levied on the bill raised by the petitioner on the 3rd respondent. Therefore, the petitioner took a stand that no Service Tax need be levied on the bill raised by the 4th respondent on the petitioner. The 4th respondent thereupon sought clarification from the 2nd respondent as to whether there will be any Service Tax liability on the 4th respondent, because the petitioner-company is remitting Service Tax for the entire contract work. Ext.P6 clarification was issued by the 1st respondent in this regard. Referring to Ext.P8 Master Circular it was clarified that the sub-contractor is providing service in the nature of ‘input service’ and therefore, Service Tax is leviable on any taxable service provider. It was clarified that Service Tax is liable to irrespective of whether the services are provided by a persons in his capacity as sub-contractor or not. It is mentioned that taxable services intended for use as ‘input service’ by another service provider will not alter the liability of Service Tax with respect to the service provider. The petitioner is challenging Ext.P6 clarifications and seeking appropriate direction restraining respondents 1 and 2 from directing the 4th respondent to charge Service Tax in respect of the service provided under Ext.P2 sub-contract agreement. Inter alia Ext.P8 is also challenged to the extent to which it insist levy on the sub-contractor, in cases where the principal contractor pays the Service Tax on the whole amount.
Appellant’s contention:- Learned counsel had placed reliance on Ext.P4 decision of the Appellate Tribunal (CESTAT), New Delhi. In the said decision the Tribunal had opined that the Central Board of Excise and Customs had taken the view earlier through its Circular dated 7-10-1998 that, a sub-contractor should not be brought in the ambit of liability of tax and the liability will be on the principal contractor. But it was noticed that the Board has changed its view through Ext.P8 Master Circular, in view of the credit made available under the Cenvat Credit Rules, 2004. The case decided under Ext.P4 pertains to the Master Circular period prior to 23-8-2007. However, the Tribunal observed that if it is proved from the records on verification that the principal contractor had discharged the tax liability in respect of the contract, cascading affect should be avoided and they are entitled to refund.
Contention of the petitioner was that since major portion of the work was sub-contracted to the 4th respondent, the recipient of the service is the 3rd respondent who is the awarder of the work. Therefore, no tax liability can be fetched against the 4th respondent is the contention.
Respondent’s contention:- learned standing counsel for C.B.E. & C. contended that service provided by the sub-contractor is in the nature of ‘input service’, which is specifically defined in the statute. Relying on Ext.P8 Circular it is contended that the Board is authorized to issue circulars prescribing the method of levy of tax. Since the service provided by the sub-contractor is in the nature of ‘input service’, which is used by the main service provider for completion of the work undertaken by him, the 4th respondent cannot be exonerated from the liability fetched upon him in the capacity as service provider. He was always liable to comply with the requirements of filing returns and for paying tax. Even if the petitioner had discharged the entire liability, only a credit can be claimed under the provisions of the Cenvat Credit Rules, is the contention.
Reasoning of judgment:-This Court is of the considered opinion that in view of the specific clarifications regarding ‘input service’ rendered by the sub-contractor, which is used by the main service provider for completion of the work, it cannot be held that the sub-contractor was not liable to pay service tax for the services provided by him. However, it was for the adjudicating authority to decide on verification of records regarding the discharge of liability of ‘service tax’ and to decide with respect to the credit relating to the ‘input service’. The directions issued by the CESTAT in Ext.P4 judgment was also to the affect of issuing similar directions.
 
On the facts of the case at hand, it was evident that this Court had issued an interim order staying operation of Exts.P6 and P8 to the extent it was related to the sub-contract in which case the principal contractor pays service tax on the whole amount of the contract. Learned counsel for the petitioner submitted that with respect to the work in question both the petitioner as well as the 4th respondent had submitted returns within the statutory period. Therefore, this Court was of the opinion that interest of justice can be achieved by directing the 1st respondent to have an adjudication with respect to the tax liability as well as credit of ‘input service’ with respect to the work in question awarded on the basis of Ext.P1, taking note of the returns filed by the petitioner as well as by the 4th respondent. Necessary decision had to be taken by the 1st respondent considering the claim for the credit based on remittance of the entire tax liability by the 1st respondent. Hence this writ petition was disposed of by directing the 1st respondent or the competent authority to conduct adjudication as mentioned above and to decide the tax liability.
In view of the interim order continued during pendency of this writ petition, no demand can be enforced against the 4th respondent for payment of Service Tax with respect to the contract in question, till the adjudication is finalized. It was further directed that in view of the fact that the matter was pending adjudication before this Court, the 4th respondent shall not impose with any penalty or penal consequences.
 
Decision:-Petition disposed of
 
Comment:- the core of this case was that the sub contractor is liable to pay tax for the work done by the contractor which is finally used by main service provider. However the adjudication authorities was held responsible for computing and decide on verification of records regarding discharge of liability of Service Tax and credit relating to input service.
Prepared by:- Alakh Bhandari
 
 

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