Custom, Excise & Service Tax Tribunal
The Shiva Industrial Security Vs. ... vs Agency (Gujarat) Pvt. Ltd. Surat on 25 March, 2008
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Zonal Bench, O-20, Meghani Nagar, Ahmedabad COURT-II Date of hearing/decision: 25.3.2008 Service Tax Appeal No.04 of 2005 Arising out of the order original No.05/Service Tax/2007 dated 28.9.07passed by the Commissioner (Appeals), Central Excise & Customs, Surat. For Approval and Signature: Honble Mrs. Archana Wadhwa, Member (Judicial) Honble Mr. B.S.V. Murthy, Member (Technical) 1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3 Whether their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes Appellant Respondent
The Shiva Industrial Security vs. C.C.E., Agency (Gujarat) Pvt. Ltd. Surat Appearance: Shri S. Suriyanarayan, Advocate for the appellants and
Smt. A. Vasudev, Authorized Departmental Representative (JCDR) for the Revenue Coram: Honble Mrs. Archana Wadhwa, Member (Judicial) Honble Mr. B.S.V. Murthy, Member (Technical) Order No.____________________ Per Archana Wadhwa:
After hearing both the sides duly represented by Shri S. Suriyanarayan, learned Advocate and Smt. A. Vasudev, learned JCDR, we find that service tax amounting to 51,14,907/- stands confirmed against the appellant for the period from April 2002 to December, 2003 in respect of security services provided by them to M/s Reliance Group Support Services Pvt. Ltd. In addition, penalty on the equivalent amount stands imposed under Section 78 of the Finance Act, 1994, apart from imposition of penalties under Section 75 and 76 of the Finance Act, 1994. Ld. Advocate for the appellant submits that the appellant is a sub-contractor and as per the agreement, the main contractor M/s. Reliance Group Support Services Pvt. Ltd. was required to pay the service tax and that the same has been paid by them(as noted in the record of personal hearing by the Commissioner). Since the service tax stands paid already by the main contractor, there was no question of demanding again from the appellant and the question of demand of interest and imposition of penalty also does not arise. He relies on the Trade Notice No.5/98-Service Tax of the Indore Commissionerate dt. 14/10/1998, wherein in the context of service of architect and interior decorator, it has been held that when the principal party pays the tax the sub-contractor need not pay the tax. He also relies on the following decisions:-
a. M/s.Evergreen Suppliers[2007(7)STR44(Tri. Bang)] b. M/s.Semac Pvt. Ltd.[2006(4)STR475(Tri. Bang.)] c. M/s.Oikos[2007(5)STR229(Tri. Bang.)] d. M/s.BBR(India) Ltd.[2006(4)STR269(Tri. Bang.)] e. M/s.Diamond Shipping Agencies (P) Ltd.[2007(8)STR515(Tri. Chennai)] Learned JCDR Smt. A.Vasudev appearing for the revenue submits that admittedly, the appellants were providing security services , though to the main contractor and upon the sub-contractor, the law enjoins the liability upon to pay duty. Further, reliance is placed on the latest Circular No.96/7/2007-S.T., dated 23.8.2007 clarifying that sub-contractor is independently required to pay service tax. Further, it stands submitted that the Tribunals decision relied upon by the appellant are not applicable to the facts of the instant case, inasmuch as the services being considered in those judgements were services of architect/interior decorator. As such, the ratio of the said decision cannot be made applicable to the services provided by the security agencies.
3. It stands strongly pleaded before us that the main contractor, M/s Reliance Group Support Services Pvt. Ltd. has already paid the entire amount related to the services rendered by the appellants as sub-contractor and as such, the revenue cannot confirm the service tax and in respect of the same services, on which the tax already stands paid. As such, it is the appellants contention that the entire situation is revenue neutral and confirmation of demand of duty against them would lead to duplication of the same , which is not permissible.
4. We find that the various decisions relied upon by the appellants before the adjudicating authority, though noticed by him does not stand discussed by the Commissioner. Further, the fact that M/s Reliance Group Support Services Pvt. Ltd. has paid the entire amount of tax in respect of the services provided to the appellants as sub-contractor also does not stand taken note of by the Commissioner, while confirming duty against the appellant. As such, we would like the Commissioner to re-consider the issue in the light of the Tribunals decision referred supra. For the said purpose, we set aside the impugned order and remand the matter to the Commissioner for fresh decision. The appeal is allowed by way of remand.
(Dictated and pronounced in the open Court) (Archana Wadhwa) Member (Judicial) (B.S.V. Murthy) Member (Technical) scd/