Sub-contractor cannot be asked to prove correctness of certificate issued by original contractors

CESTAT, AHMEDABAD BENCH

Theodesh Consultants

V/s.

Commissioner of Central Excise

ORDER NO. A/866/WZB/AHD. of 2012

S/1047/WZB/AHD. of 2012

APPLICATION NO. ST/S-1257 of 2011

APPEAL NO. ST/548 of 2011

JUNE 13, 2012

ORDER

M.V. Ravindran, Judicial Member

This stay petition is filed for waiver of pre-deposit of an amount of Rs. 9,91,975/- as service tax liability under the head ‘Survey and Map Making’ along with interest and penalty under various sections of Central Excise Act, 1944.

2. After hearing both the sides for some time on the stay petition, we find that the appeal itself could be disposed, with the consent of both sides, after waiving the condition of pre-deposit of the amount involved, the appeal itself is taken up for disposal.

3. Mr. Patel, the partner of the appellant appeared in person and submitted that the payment of amount received by them is as a sub-contractor of M/s. Swayin Associate, M/s. Mascon Multi service & Consultant Pvt. Ltd., M/s. MWH India Pvt. Ltd. and M/s. Despande Patil Consultants. It is submitted that the main contractor was discharging the service tax liability on the entire contract executed by them and the appellant is only executing a part of the contract which have been awarded to them. It is submitted that the service tax of entire contract value has been paid and they are not liable for any service tax and also there is question of limitation.

4. After hearing the learned SDR, we find that in page Nos. 238 to 245 the appellant had produced various certificates before the adjudicating authority from the original contractor. These certificates indicate that the original contractor has discharged the service tax liability on the part of the work executed by appellant. If that be so, in our view the appellant need not be burdened with service tax liability. This view has been taken by various decisions of Tribunal. As submitted by Shri Piyush Patel, we find that the lower authority is in error to direct the appellant to produce the account and accounting procedure of the original contractor. On perusal of the certificates issued by original contractor, we find that the original contractor had given ref. no. of the contract and also their service tax registration no. which could have been verified by the lower authority inter departmentally. In our considered view this should have been done by the adjudicating authority before adjudicating the issue. Holding this action has to be done by the authority and not by the assessee, we are not able sustain the impugned order on this ground.

5. The impugned order is set aside and appeal is allowed by way of remand to the adjudicating authority keeping all the issues open. The adjudicating authority will reconsider the issue after following the principles of natural justice.

6. Impugned order set aside and appeal allowed by way of remand.

NF