VISHRAM VALJI CHOTARA Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THIS Stay Petition is filed for waiver of pre -deposit of an amount of Rs. 8,19,152/ - confirmed as Service Tax liability, interest thereof and penalties under Sections 76, 77 & 78 of Finance Act, 1994, Heard both the sides on the Stay Petition and perused the records.

(2.) ON perusal of the records, we find that the demand is for the period 2005 -2006 to 2006 -2007, the appellant was a sub -contractor of M/s. M.S. Patel and M/s. Vishal Construction. He was awarded as a part of the works contract which was received by them and he received the amount contracted with main contractor. Both the lower authorities have held that the appellant herein is liable for discharge of Service Tax on the amount received by them from the main contractor, even if the main contractor has discharged the Service Tax liability on the total contract value. For coming to such a conclusion, both the lower authorities have relied upon C.B.E. & C. Circular 23 -8 -2007. We find that for the case in hand, post 23 -8 -2007, there is no amount which has been received by the appellant from the main contractor for the service rendered by him. The amount which has been received by them is prior to 23 -8 -2007 and by virtue of the main contractor having discharged the Service Tax liability, we are of the view that the appellant is not liable to discharge the Service Tax liability. This our view is fortified by the fact that the earlier C.B.E. & C. Circular, dated 6 -6 -1997 and 2 -7 -1997 specifically mentioned that the sub -contractors need not pay Service Tax if the main contractor has paid the Service Tax. We also find that the Tribunal in the case of Monarch Surveyors & Contractors -, 2013 TIOL 109 CESTAT MUM, has specifically applied this circular and held in favour of the assessee therein, who was a sub -contractor prior to 23 -8 -2007. In view of the above, the appellant has made out a strong case for waiver of pre -deposit of the amounts involved. The application for the waiver of pre -deposit of the amounts involved is allowed and recovery thereof stayed till the disposal of appeal.