Jayesh AmIn Vs. Commr. of Central Excise and Service Tax-ranchi

Jayesh Amin vs Commr. of Central Excise and Service Tax-ranchi

Type Court Judgment Court Customs Excise and Service Tax Appellate Tribunal CESTAT Kolkata Decided Mar 18, 2014

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Citation: sooperkanoon.com/1149637
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Kolkata
Judge: The Honourable Dr. D. M. Misra, Judicial Member &Amp; the Honourable Dr. I. P. Lal, Technical Member
Decided On: Mar 18, 2014
Case Number: Stay Petition No. 1190 of 12 & Service Tax Appeal No. 537 of 2012 (Arising Out of the Order-in-Appeal No. 211/JSR of 2012 dated-5/10 of 2012 passed by the Commissioner (Appeals), Central Excise & Service Tax, Ranchi)
Subject: Service Tax

Case Summary

AI-generated summary - not the official court judgment text.

Finance Act, 1994 - Section 78, Section 77 -

Key legal issue: Service Tax

Parties & Advocates

Appellant / Petitioner

Jayesh Amin

Respondent

Commr. of Central Excise and Service Tax-ranchi

Excerpt

finance act, 1994 - section 78, section 77 - dr. d.m. misra, j. 1. this is an application filed seeking waiver of pre-deposit of duty of rs.2,77,426/- and equal amount of penalty imposed under section 78 and penalty of rs.1,000/- imposed under section 77 of the finance act, 1994. 2. at the outset, the ld. advocate submitted that the ld. commissioner has not decided the issue on merit but dismissed their appeal for non-compliance with the stay order dated 5/9/2011. he submits that the applicant had rendered services as a sub-contractor and the entire amount of service tax had been discharged by their principal contractor. the ld. advocate submitted that in view of the decision of this tribunal in the case of m/s. auto flash vs. commissioner of service tax, bangalore- 2008 (9) str 462 (tri-bangalore), the applicant, a sub-contractor is not required to pay the service tax once the principal contractor has discharged the service tax on the same set of services rendered. 3. ld. a.r. for the revenue has fairly accepted that the issue has not been decided on merit. 4. after hearing both sides for some time, we find that the appeal itself could be disposed off at this stage. accordingly, after waiving the requirement of pre-deposit adjudged, we take up the appeal for disposal. we find that the ld. commr.(appeals) has not decided the issue on merit but dismissed the appeal for non-compliance with the direction of pre-deposit. we find force in the argument of the ld. advocate which needs verification/scrutiny in the light of principle of law settled by this tribunal on the issue of applicability of service tax to sub-contractors, once the principal contractor has discharged the service tax. in the result, we set aside the impugned order passed by the ld. commr. (appeals) and remit the matter to the ld. commr. (appeal) for deciding the issue afresh on merit without insisting for any deposit. needless to mention that adequate opportunity of hearing be granted to the appellant. all isssues are kept open. appeal is allowed.....

Full Judgment

DR. D.M. Misra, J.

1. This is an application filed seeking waiver of pre-deposit of duty of Rs.2,77,426/- and equal amount of penalty imposed under Section 78 and penalty of Rs.1,000/- imposed under Section 77 of the Finance Act, 1994.

2. At the outset, the Ld. Advocate submitted that the Ld. Commissioner has not decided the issue on merit but dismissed their appeal for non-compliance with the stay order dated 5/9/2011. He submits that the applicant had rendered services as a sub-contractor and the entire amount of Service Tax had been discharged by their principal contractor. The Ld. Advocate submitted that in view of the decision of this Tribunal in the case of M/s. Auto Flash Vs. Commissioner of Service Tax, Bangalore- 2008 (9) STR 462 (Tri-Bangalore), the applicant, a sub-contractor is not required to pay the Service Tax once the principal contractor has discharged the service tax on the same set of services rendered.

3. Ld. A.R. for the Revenue has fairly accepted that the issue has not been decided on merit.

4. After hearing both sides for some time, we find that the appeal itself could be disposed off at this stage. Accordingly, after waiving the requirement of pre-deposit adjudged, we take up the appeal for disposal. We find that the Ld. Commr.(Appeals) has not decided the issue on merit but dismissed the appeal for non-compliance with the direction of pre-deposit. We find force in the argument of the Ld. Advocate which needs verification/scrutiny in the light of principle of law settled by this Tribunal on the issue of applicability of Service Tax to sub-contractors, once the principal contractor has discharged the service tax. In the result, we set aside the impugned order passed by the Ld. Commr. (Appeals) and remit the matter to the Ld. Commr. (Appeal) for deciding the issue afresh on merit without insisting for any deposit. Needless to mention that adequate opportunity of hearing be granted to the appellant. All isssues are kept open. Appeal is allowed by way of Remand. S.P. is disposed off.

Same Court & Year Customs Excise and Service Tax Appellate Tribunal CESTAT Kolk... Same Parties Jayesh Amin vs Commr. of Central Excise and Service Tax-ranchi Same Subject Service Tax Same Judge The Honourable Dr. D. M. Misra, Judicial Member &Amp; the Hon...

Service Tax