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Pathak Construction V/S Commr. of Central Excise & Service Tax-Durgapur

    Service Tax Appeal No. 76408/2017 (Arising out of the Order-in-Appeal No. 17/DGP/2017-18 Dated-28/04/2017 passed by the Commissioner of Central Excise, (Appeals-II), Kolkata) and Final Order No. F/75136/2018

    Decided On, 31 January 2018

    At, Customs Excise Service Tax Appellate Tribunal East Zonal Bench Bench, Kolkata

    By, MEMBER

    For Petitioner: U. Dasgupta, Advocate And For Respondents: H.S. Abedin, A.C. (A.R.)

Judgment Text

1. Heard both sides and perused the appeal records.

2. For proper appreciation of the facts, relevant paras of the impugned order are reproduced below:

3. In the grounds of appeal, the appellant have stated that:

(i) DSP did not mention the provision of service tax in the tender paper and have not aid service tax to them; the service tax amount whichever will be paid by the DSP, the same will be deposite

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d in Govt. account;

(ii) apart from DSP they have worked as a sub-contractor of NSPCL under Utility Powertech Ltd. during the impugned period and being a principal employer they had deposited the service tax of Rs. 1,30,745/- on taxable value of Rs. 11,92,691/-; They requested to deduct the amount from the total claim;

(iii) there was no suppression of fact with ulterior motive; they requested for waiver of penalties imposed under section 76, 77 & 78 invoking section 80;

4. Sri A. Pathak, proprietor appeared for the appellant firm for personal hearing and reiterated the grounds of appeal. Shri A. Kumar, Inspector, range-III, Service Tax Division, Durgapur Commissionerate appeared for the Department and reiterated the OIO.

5. I have carefully gone through the order, grounds of appeal, submissions made during personal hearing, relevant legal provisions, and all other evidence on record. The issue to be decided is that whether or not the appellant is liable to pay the service tax confirmed and whether or not penalties under section 76, 77 & 78 is imposable on them.

6. As regards non payment of service tax for non-receiving the same from M/s. DSP, I find it is evident from the documents viz. balance sheets etc. for the relevant period and the written submission before the lower authority that they have received their service charges for rendering service and their tax liability arises as soon as they received the same in terms of Rule 6 (1) of the said Rules. Thus, they are liable to discharge their tax liability for the impugned period. The plea that DSP did not pay them service tax cannot be accepted for such non/short payment of tax.

7. I find that the appellant prayed for deduction of service Tax amounting to Rs. 1,30,745/- from their total liability since the same has already been deposited by their principal employer in connection to work as a sub-contractor of NSPCL under M/s. Utility Power Teck Ltd. In this regard, I find that the lower authority has observed that:-

In context of such submission of the assessee it can be said that double taxation is not the intention of the department but at the same time it remains to be ensured that proper service tax has been deposited in the government exchequer. On that score, the total tax liability of the principal contractor M/s. Utility Power Teck Limited having the break up of tax liability of the sub-contractors including that of M/s. Pathak Construction separately with the value addition etc. in total contract is required to be reflected alongwith the supporting documents, duly certified, for substantiating the claim as legitimate and based on facts. But the assessee did not do so. They have only submitted a few copies of certificate from M/s. Utility Power Tech Limited. This will not suffice to for consideration of deduction as proposed by the assessee. On perusal of their submission, I find that even before me they have not produced any documentary evidence to prove anything contrary to the above observation of the lower authority. Therefore, such contention is not acceptable and they are liable to pay the said amount of tax alongwith interest.
8. I find that both the lower authorities have observed that the assessee has not produced documentary evidence in support of his submissions. Under the facts and circumstances of the case, it would be appropriate to remand the matter to the Adjudicating Authority giving an opportunity to the appellant/assessee to produce all the supporting documents for substantiating their claim. Needless to mention that reasonable opportunity of hearing be given to the appellant to present their case. Since the period involved is from 2004-05 to 2008-09, the Adjudicating Authority is directed to pass order in accordance with law within three months from the date of receipt of this order. All issues are kept open. Appeal is allowed by way of Remand to the Adjudicating Authority