case law require

This query is : Resolved

Querist : Anonymous

Querist : Anonymous (Querist)

01 April 2010 Dear Expert,
kindly provide full text of below case law of service tax i.e.Oikos and Koch-Glitsch India Ltd. v. CCE & Cus., Vadodara, ahmadabad by tribunal

CA Gunjan H Shah

CA Gunjan H Shah (Expert)
Follow

09 April 2010 2009 (13) S.T.R. 636 (Tri. - Ahmd.)

IN THE CESTAT, WEST ZONAL BENCH, AHMEDABAD

[COURT NO. II]

Ms. Archana Wadhwa, Member (J) and Shri B.S.V. Murthy, Member (T)

KOCH-GLITSCH INDIA LTD.

Versus

COMMR. OF C. EX. & CUS., VADODARA-I

Final Order No. A/2450/2008-WZB/AHD, dated 5-11-2008 in Appeal No. ST/304/2005

Cenvat credit of Service tax - Input service - Credit of tax paid by sub-contractor involved in installation and commissioning services denied as vide C.B.E. & C. Letter F.No. B/43/4/97-TRU, dated 2-7-1997, sub-contractors not liable to pay tax - No dispute that sub-contractor provided service to main contractor and were not accountable to service receiver - Appellant had choice to pay Service tax themselves instead of making sub-contractor pay and take credit of same - No dispute that sub-contractor not provided any service at all - No evasion when liability discharged in two stages rather than at one stage - Contention of Revenue that what was deposited by sub-contractor was not Service tax but only deposit not appreciated - Credit allowed - Rules 2(l) and 14 of Cenvat Credit Rules, 2004. [para 3]

Appeal allowed

CASES CITED

Commissioner v. Tube Investments of India Ltd. — 2004 (176) E.L.T. 363 (Tribunal) — Relied on [Para 2]

Indian Oil Corporation Ltd. v. Commissioner — 2006 (206) E.L.T. 533 (Tribunal) — Relied on [Para 2]

MDS Switchgear Ltd. v. Commissioner — 2001 (132) E.L.T. 405 (Tribunal) — Relied on... [Para 2]

DEPARTMENTAL CLARIFICATION CITED

C.B.E. &. C Letter F.No. B/43/4/97/TRU, dated 2-7-1997................................................ [Para 1]

REPRESENTED BY : Shri J.C. Patel, Advocate, for the Appellant.

Shri Sameer Chitkara, SDR, for the Respondent.

[Order per : B.S.V. Murthy, Member (T)]. - A short issue involved in this appeal. The appellant took service tax credit of Rs. 5,16,431/- paid by their sub-contractors, who were involved in installation and commissioning services, after 1-7-2003. The ground taken by the Revenue for rejection is clarification issued by the Board vide letter F.No. B/43/4/97/TRU, dated 2-7-97, wherein it was clarified that where the services has been provided by the sub-contractors, such sub-contractors are not liable to pay service tax and service tax liability is on the main contractor. Further, it was also held by the Revenue that the appellants did not file details of credit availed by them along with ST3 returns and thereby suppressed the material fact regarding availment of the credit in respect of amounts paid by sub-contractors as service tax.

2. Heard both the sides. Ld. Adv. submits that the issue is clearly covered by the Tribunal decision, in that it has been held that once duty is actually paid by the input supplier, recipient manufacturer is entitled to the credit irrespective to the fact that whether such inputs were liable to duty or not. He cites the following decisions in support of his contention :-

(a) 2001 (132) E.L.T. 405 (Tri.-Mum.) in MDS Switchgear Ltd. v. CCE & Cus., Aurangabad.

(b) 2004 (176) E.L.T. 363 (Tri. -Bang.) in CCE, Hyderabad v. Tube Investments of India Ltd.

(c) 2006 (206) E.L.T. 533 (Tri. -Bang.) in IOC Ltd. v. CCE, Guntur.

He submits that by applying same analogy for Service Tax, credit taken by them is proper and therefore, order of Commissioner (Appeals) has to be set aside. He also submits that it is not correct on the part of the Revenue to say that details of credit taken was not furnished. He submits that in the returns filed by them, service tax credit availed had been shown even though, they had not submitted a separate annexure showing details of credit taken and utilized. He submits that department could have easily known that they were taking the credit of service tax. The ld. SDR on the other hand submits that the fact remains that as required under rules, the details of credit taken were not submitted and ST-3 return shows only consolidated amount of credit taken and utilized which is not adequate. He also submits that the liability is on the prime contractor and sub-contractors were working under them and there seems to be a deliberate attempt on the part of appellant to make the sub-contractor to pay service tax and take credit of the same.

3. We considered the submissions. We feel that the judgments of the Tribunal stated by the appellant above clearly cover the issue even though they do not relate to the service tax. It is not in dispute that sub-contractor provided the service to the main contractor and they were not accountable to the service receiver. Appellant clearly had a choice to pay service tax themselves instead of making the sub-contractor pay service tax and take credit of the same and utilize for payment of tax by them. It is not in dispute or has been contended before us that sub-contractors did not provide any service at all but passed on the credit. Since the services has been provided and liability has been discharged in two stages rather than in one stage and there is no evasion of tax, we feel that the Revenue cannot have any grievance. In these circumstances the credit taken by the appellant cannot be denied. We are also unable to appreciate the contention of the Revenue that what has been deposited by the sub-contractor is not service tax but only a deposit. We allow the appeal with consequential relief to the appellant.

(Pronounced in the Court)

_______

Message likes : 1 times

Querist : Anonymous

Querist : Anonymous (Querist)

09 April 2010 THANKS, GUNJANJI

Upgrade to CAclubindia Pro. Subscribe Now!