Service Tax: Supply of manpower for the period May 2004 to April 2006: Scope and liability: The supply of manpower services were introduced w.e.f. 16/6/05 and, as such, the same cannot be said to be covered by the manpower recruitment services. Secondly, the appellant is an individual providing such, services and, as such, cannot be held to be a commercial concern. In as much as prior to 01/5/06, the definition of the services included the expression "commercial concerns", no service tax can be confirmed against an individual. For the above proposition, reliance kept upon the decisions of the Tribunal in the cases of :- (1) Shri Mehraj Khan Vs. CCE, Jaipur reported in STO 2012 CESTAT 136. (2) Bazpur Co-op. Sugar Factory Ltd. Vs. CCE, Meerut-II reported in STO 2012 CESTAT 1167 (3) Star Energy Systems Vs. CST, Ahmedabad reported in STO 2010 CESTAT 439 (Para 2,3).

Appeal allowed.

Manpower Supply Service: Global employees working under the appellant are working as their employees and having employee-employer relationship. It is further held that there is no supply of manpower service rendered to the appellant by the foreign/holding company. The method of disbursement of salary cannot determine the nature of transaction: Demand set aside.

Manpower Supply Service: Information Technology Service: wherever similar contracts by one party with other software companies, where the details of software developed were not specified in the contract, prima facie the contracts were for man power supply: Directions issued for partial pre deposit.

Manpower Service: If the corporate veil of the petitioner is lifted (assuming this process to be legitimate) and the petitioner is considered as the alter ego of the overseas companies- (RIM, Canada and RIM, Singapore), there would in such an event and on such inferential process occur no provision of service to another (as it would amount to a service to self); and thus outside the ambit of the taxable service.

Manpower Recruitment or Supply Agency Service: Demand: Stay: There is a categorical observation of the Commissioner that the applicant paid the amount to M/s. NSK Ltd. Japan for the service rendered by its employees: Directions issued for partial pre deposit.

Manpower Supply Service: Demand: Stay: Tax on handling charges: Based on earlier order: directions issued for partial pre deposit.

Manpower Supply Service: Though a relationship between the applicant and labourers as employer and employee may not be an essential criterion for the service to fall under the definition at section 65(68), in the absence of employer employee relationship the payment for the labourers cannot be considered to be paid to the applicant. The payment is only routed through them. As per section 67 of the Finance Act 1994, service tax can be demanded only on consideration received by the service provider. The amount of Rs.4/- PMT charged appears to be for transportation of the employees from one site to the other and not towards consideration of services rendered by the applicant: Pre deposit waived.

Manpower Recruitment or Supply Service: Demand: Stay: Technical staff deputed to sister concern unit for a fixed Period: Based on decisions of co-ordinate benches granting unconditional stay: Prima facie case for waiver of pre deposit found.

Manpower Recruitment or Agency Service: Applicants were deputing their employees to their subsidiary units, therefore it is covered under the scope of 'manpower recruitment or agency service'.

Manpower Supply Service: Port Service: Demand: Stay: Appellants have undertaken chipping and painting work to Indian Navy Vessels and after going through the notification and the documents, this work was undertaken for navy is exempted as claimed: Directions for partial pre deposit issued for other services.

Manpower supply Service: Job work: Difference between “labour bill” and “Bill for labour”: Pre deposit waived.

Manpower Supply service: appellants engaged contractors for harvesting of the sugarcane and also for the transportation of sugarcane. The consideration for harvesting and transportation was paid on the basis of tonnage of the sugarcane supplied to the factory and different rates were fixed on tonnage basis for harvesting of sugarcane and transportation of sugarcane by trucks, tractors, head loads, etc. to the sugar factory. In respect of transportation by trucks, the sugar factories, being the recipient of the services, have discharged the service tax liability as they are the "persons liable to pay service tax": Services rendered by the appellant assesses do not come under the purview of 'manpower recruitment or supply service' and hence the impugned service tax demands are not sustainable in law.

Manpower Recruitment or Supply Agency Service: Security Agency Service: Demand: Stay: It is found that the matter needs to be remanded back for re-quantification of service tax to Commissioner (Appeals): Amount of service tax already deposited for one service found Sufficient: Pre deposit waived and matter remanded back.

Manpower Supply Agency: Demand: Stay: Appellants paying service tax on service charges collected: Appellants also raising bills on service recipient on the basis of contract which talks about entire service tax liability on the appellant: Directions issued for pre deposit.

Manpower Recruitment or Supply Agency Service: Demand: Stay: Applicant are engaged in transporting/transferring the chassis from the factory of M/s. TELCO to its various destinations. The Applicant received the value of services on the basis .of distance for which the chassis transferred by them. Since drivers were supplied by the Applicant for movement of the chassis, vehicles etc., therefore, the amount received for transferring the vehicles, chassis etc. cannot come under the head of Manpower Recruitment or Supply Agency Service.

Manpower Recruitment or Supply Agency: Demand: Stay: Payment of salary by their foreign counterpart in foreign currency abroad is not covered by manpower recruitment and supply agency service as the applicant having the control over the employees and the services of employee have availed by the applicant themselves and they have also reimbursed the salary paid by the foreign counterpart: Waiver granted from pre deposit.

Manpower Supply Service: Demand: Stay: Supply of manpower to subsidiary company: Based on earlier decision on similar issue: Stay granted.

Manpower Supply: Contract reveals that it is for a job work: Commissioner (A) dismissed appeal for non compliance of stay order without discussing the merit: Tribunal cannot give any finding on merit even though there is direct judgment in favor of appellants on merits: Pre deposit waived and matter remanded for decision on merits.

Manpower Supply Service: Demand: Stay: According to terms of agreement, the payments are to be made entirely on the basis of quantity produced and there is absolutely no relationship between the manpower utilized and the payment made by the parties to the contract: Issue not examined: Matter remanded.

Manpower supply service: Services provided to SEZ: Demand: Stay: whether a particular contract is for 'manpower supply' or for supply of 'information technology service' has to be seen with reference to the facts of each contract. Prima facie, on scrutiny of the contract, the contracts involved are for supply of manpower rather than contracts for software development. Considering the overall facts of the case and other precedent orders, directions issued for partial pre deposit.

Manpower Supply Agency: Labour Supply: Demand: Stay: appellant submits that he does not have any documentary evidence to show that the activity undertaken by the appellant was not supply of manpower and offers to make pre deposit of the balance service tax amount of Rs. 3,09,798/- within a period of eight weeks: Directions issued for pre deposit.

Demand: Manpower Supply Services: Appellants producing new documents, such as bills, their bye laws to support their contention that at the material time they were not “commercial concern”: Documents not produced before lower authority: Matter remanded.

Manpower service: Demand on subcontractor: Every service provider who provides a taxable service is liable to pay service tax in accordance with the statutory provisions. There is no exemption available for sub-contractors who execute the work on behalf of the main contractor: directions for pre deposit issued. 

Security Agency: Manpower Recruitment or Supply Agency Service: Demand: Stay: Prima-facie, in view of the sustained failure of the petitioner to appear for hearing before the Primary Authority and before the Appellate Authority as well; the non filing of a written plea of defence to the show cause notice; or any clear assertion on that part of the income received during the assessed period pertains to provision of service which is not Security Agency Services, unable to prima-facie discern any serious violation of fair opportunity, which vitiates the order of Appellate Authority: Directions issued for pre deposit. 

Manpower Supply Service: Miscellaneous Application for modification of stay order: Stay Order was passed after considering all the submissions made by the appellant and after perusing the records available on record. Modifying the stay order would amount to review of the order which is not permissible.

Manpower Supply: Harvesting of sugarcane and transportation thereof to the sugar factory from the farmers' fields would not come under the purview of manpower recruitment or supply agency service and would be more appropriately classifiable under "business auxiliary services".

Manpower recruitment or supply agency service: retainer fees: demand: stay: appellants paid service tax on this issue, but not paying interest and disputing the issue on merit: directions issued for partial pre deposit.

Manpower Supply Service: labourers provided by appellants to farmers were not employee of the appellants: no consideration received by appellants from the farmers: Pre deposit waived.

Manpower Supply Agency Service: Demand: Stay: Appellant No.1 herein arranged for cutting of sugarcane crop from the field of farmers who are their members. From the invoices which are raised by the appellant indicate that the appellant No.1 charging lumsum amount of Rs.300/- per metric tonne for the help provided by them for cutting; loading and unloading of sugarcane from the fields of farmers. This lumsum amount charged by the appellant as for services rendered was before the Bench of this Tribunal in the case of K. Damodarareddy and Ritesh Enterprises. In both these cases, the issue involved was identical as to the only difference is that in those cases, it was the question of bagging of cement, loading and unloading of the cement: Stay granted.

Man-power Supply Agency: Salary paid to employers: Demand involved is paid in India to the employees in India and no part of it seems to have been remitted to the parent company abroad. If that be the case, prima facie, taxability under the category of "Man-power Supply Agency" under Section 66A of the Finance Act, 1994 not established.

Manpower recruitment or supply agency services: Works Contract service: Demand: Stay: Appellants paid part Service Tax: Directions issued for partial pre deposit of remaining amount.

Manpower Supply Agency Service: Classification: Work undertaken by the appellants is harvesting of sugar cane and transporting the same to the sugar factory for which labour is employed. The sugar cane belongs to the sugar factory in terms of the agreement of sale executed between the farmer and the sugar factory. Therefore, the activity undertaken by the appellant is one of procuring or processing of the goods belonging to the client which is classifiable under 'Business Auxiliary Service' and not under 'Manpower Recruitment of Supply Agency Service'.

Manpower Recruitment & Supply Agency: Work undertaken - harvesting of sugar cane and transporting the same to the sugar factory for which labour is employed: Not covered under MRSA.

Manpower Supply Service: The appellants deputed personnel such as Executives, Secretaries, Receptionists, etc. to their group companies. These personnel deputed remained the employees of the appellant and wages/salaries of these personnel were recovered from the group companies. In addition, they also recovered 15% of the wages/salaries as service charges: For recovery of these amounts, they had issued debit notes to the group companies: The service of deputing staff to the group companies came under tax net only w.e.f. 16/06/2005 under the category of 'Manpower Supply Service'.

Manpower Supply Agency: Services provided to SEZ: Exemption available provided the SEZ developer or the unit of SEZ has been duly approved by the competent authority and the said entities maintain proper account of receipt and utilization of the said taxable service: Verifiable facts: Matter remanded.

Information Technology Service or Manpower Supply Service: Appellants deputed skilled personnel including computer engineers to work under the supervision and control of TCS and Infosys personnel in-charge of projects undertaken by TCS and Infosys : Appellants are getting paid in terms of the man hours for the persons deputed to work under the control and supervision of TCS and Infosys: Subsequent period they have classified the services under ITS: There is no system of assessment by the department now. The assessee is expected to assess the service which is nothing but classification, valuation and work out the liability and pay the tax. In the absence of an assessment by the Revenue, we cannot say that what has been done has been accepted. In any case, it is always possible that if no differential tax is payable, the officers may not take any view about It: Directions issued for partial pre deposit.

Manpower Supply Agency: There being no dispute that the recipients of service are units of SEZ and services provided are 'man-power supply service' and the said service is an eligible service for the purpose of Notification No. 4/2004-ST. Service being intangible, its provision and consumption take place simultaneously: Matter needs reconsideration: Remand.

Manpower Supply: Respondent is liable to pay service tax on the amounts received towards wages/salaries of Sea Farers under the category of Manpower recruitment or supply agency service.

Manpower Supply Agency Service: No taxable service is rendered because having a database of labourers or routing of the labourers or payments for the labourersmay not be, sufficient to make the applicant a manpower supply agency and also for the reason that for a service to be taxable at least there should be some part of the value of service retained by the service provider.

Manpower Supply Service: Demand: Stay: Personnel employed by the appellants remained their employees during the period of the agreements and, therefore, there is no supply of manpower by the German entity to the Indian entity.

Manpower Recruitment and Supply Agency: Stay: Appellants issue separate invoices for supply of labour and separate invoices for their medical claims to the service recipient and then makes payment to the individual labours: Section 67 requires entire value received should be considered taxable: Invoices reveal cum-tax benefit not considered by lower authorities: Partial pre deposit ordered.

'Supply of Manpower Service': As per agreement: Responsibility of the appellant is that of a labour contractor and he is required to supply workmen to the service-recipient for various works to be assigned and carried out at the service-recipients premises: Prima facie activity covered under supply of labour: Directions issued for partial pre deposit.

Manpower supply service: Appellant-trust who has entered into an agreement with the sugar factory for harvesting of sugar cane at the farmers’ fields and transportation of the same from the farmers’ fields to the sugar factory. It is the appellant who has received the consideration from the sugar factory for the work undertaken and the responsibility of ensuring harvesting of the sugar cane and transporting the same is on the appellant-trust and the appellant engaged labour contractors for cutting and transport of sugar cane. Therefore, it cannot be said that the appellant is not rendering any service at all: Directions issued for pre deposit.

Manpower Supply: Demand: Stay: Appellant is Manpower Supply agency: Appellant was asked by the department to produce documents on which they relied upon, which were not supplied, hence, dilatory tactics evident: Asked to make partial pre deposit.

Security Agency Service: Manpower Supply Service: Demand: Stay: Applicant was providing only security services and no proof of supply of man-power supply has been produced at lower levels and some feeble evidences have been produced before Tribunal as a fresh evidence: Directions issued for partial pre deposit.

Man-power Recruitment or Supply Agency Service: Billing is done on the basis of manpower made available to M/s. ITL: Service covered: Directions issued for partial pre deposit.

Manpower Supply: Stay: all the contracts are lump-sum contracts based upon the quantum of work which has been awarded to the appellant and not for the supply of man power per se: Stay granted.

Manpower Supply: Work order for completion of particular job and not for manpower supply per se: Prima facie case found for waiver of pre deposit.

Manpower Supply Service: Stay: Appellant has been awarded contract by the dairy for a specific job: Stay granted on prima facie case.

Goods Transport Agency: Stay: if the transportation services rendered by individual or by truck owners, service tax will not arise: Stay granted.

Manpower Supply Service: Split Pay-Roll maintained by the appellants for employees employed in India as well as abroad: Revenue neutrality is also a ground for waiver for pre deposit.

"Manpower Recruitment or Supply Agency Service": individual employees continued to be on the payrolls of the foreign companies even while their services were under assignment to the Indian company. Apparently, salary was paid by the foreign companies to the individual employees: Debatable issue: On the ground of revenue neutrality stay granted.

Manpower Supply Service: Job Work: Demand: Amount received in respect of the job-work undertaken and not on account of supply of man-power: Matter remanded.

Manpower Supply Agency Service: Stay: Prima facie there appears supply of manpower by the State of Punjab to, its instrumentality called "PUNBUS". Such a service is not immune from taxation under the provisions of Finance Act 1994, The plea of instrumentality of the State under the Rule of business of State of Punjab shall be looked into in detail in the course of regular hearing so also the jurisdiction aspect. Separate entity of appellant prima facie shows existence of a different body bringing taxable entity for taxation: Directions issued for pre deposit.

Manpower Recruitment Agency: Stay: When the farmers and the transporters have entered into agreements directly with the sugar factory, by no stretch of imagination the appellant-Trust could be considered as a person responsible for supply of manpower to the sugar factory temporarily or otherwise : Stay granted.

Manpower Supply Service: Appellants received money from its undertakings and accounted for under the head 'professional charges' and it was found that the said charges were paid on account of secondment of staff by the appellant to its subsidiary: Matter remanded on the basis of Tribunal judgment.

Manpower Supply: Appellant is a manufacturer of excisable goods: Sharing the employees with sister concern: No service provided.

Manpower Supply: amount in dispute is in respect of statutory fees which are paid on behalf of their clients and shown separately in the invoices: Prima facie case found and waiver from pre deposit granted.

Manpower Recruitment & Supply: employees of appellant’s including plant and machinery were used by Apollo Tyres Ltd for manufacturing tyres and tubes of Apollo brand: demand raised on salary paid to employees treating it as supply of manpower: Agreement entered between the two not for manpower supply: Stay granted on prima facie view.

Manpower Recruitment Agency: Expenses reimbursed by service receiver whether includible: Based on stay granted by Honorable Supreme Court in another matter involving similar issue: Stay granted.

Manpower Recruitment Agency: Persons recruited by the applicant for the service receivers are also employed outside India: Export of Service: Demand set aside.

Manpower Recruitment & Supply Service: Prior to 01.05.2006 only services provided by “commercial concern” were taxable: Demand set aside partially and held that appellants liable for benefit of cum-tax benefit and benefit of Notfn.No.06/2005-ST.

Supply of Manpower: Appellants working on contract basis with their principal: Demand not sustainable: Appeal dismissed for non compliance: Matter remanded back for deciding afresh after waiving requirement of pre deposit.

Manpower Recruitment & Supply Service: Appellant’s contention that they had provided services as per agreement, hence, not classifiable under MRSS: New ground: Matter remanded.

Manpower Recruitment and Supply Agency's Services.: Appellants claim that they perform the services as per the agreement, hence, not classifiable under this category: Matter remanded. 

Cargo Handling Service: Work order for bagging of urea and loading the same in Wagons and trucks in the plant is a Cargo Handling Service and not Manpower Service.

Manpower Supply Agency: Appellants engaged in crushing of stone and supplying it on rate contract basis: Lump-sum work are given to the appellant for execution and this lump-sum work would not fall under the category of providing of service of supply of manpower.

Manpower Supply Service: Appellants leased out unit to FACOR and arrangement was made whereby all employees of appellants were retained by FACOR, however, payment of salaries, etc were made by FACOR and disbursed by the appellants: Prima facie activity covered under MSS: Partial stay granted.

Manpower Recruitment & Supply Agency: Ship Management Service: the appellant has to arrange for Master, officers and crew on-board the vessels as required under the Merchant Shipping Act, 1958 and any other International Maritime Act and as per manning standards. It is further seen that the crew supplied would remain as employees of the appellant and the appellant will be paid consolidated charges every calendar month: For period prior to and after 1.5.2006 services covered under Manpower Recruitment & Supply Agency.

Manpower Supply: Appellants deputing employees to their other hotels owned by their subsidiary companies and recovering expenses cannot be considered as service of manpower supply: Prima facie case made out: Stay granted.

Manpower Supply Service: Feeding of husk in the boilers: Penalty: Not imposable since the department itself was in confusion about classification of service.

"Manpower Recruitment or Supply Agency": Appellants contended that they acted only as pure agent : Evidences not produced : Contract does not show that they acted as pure agent : Partial stay granted.

Service Tax: Manpower Recruitment and Supply Agency Service: Show cause notice being foundation for making allegation that must clearly bring out the charge against the assessee depicting the gravity of the charge and basis. Unable to notice the charge with a basis in the show cause notice for which the proceeding cannot be sustained. Dismiss the appeal of Revenue on the aforesaid reasoning. (para 3)

Service Tax: Manpower supply service: Demand: There was no formal agreement between the appellant-trust and the sugar factory prior to 2.6.2005. The impugned demand of service tax is partly for the period prior to 2.6.2005, for which period, no evidence, whatsoever, has been adduced by the assessee to show that their activity did not constitute 'manpower supply' service.(Para2). Partial pre-deposit is ordered.(Para 3). 

Service Tax: Manpower Recruitment or Supply Agency: Penalty: It cannot be held that the assessee could manage the affairs of her business during the material period but could not pay the tax due owing to the mental strain and pressure suffered by her during the same period. This penalty is reduced to an amount equal to the tax demanded. The appeal is disposed in the above terms. (para 4)

Service Tax: Manpower Recruitment Agency: Demand: Adjudication: The definition of ‘manpower recruitment or supply agency’ prior to 01.05.2006, was indicating “any commercial concern” engaged in providing any service, directly or indirectly, in any manner for recruitment of supply of manpower, temporarily or otherwise, to a client. However with effect from 01.05.2006, the words “commercial concern” have been replaced by the words “any person”. This would indicate that prior to 01.05.2006, services rendered by the institutes which are not commercial concern would not fall under the service tax net. Since the issue involved in this case is prior to 01.05.2006 is squarely covered. The impugned order passed by the Commissioner (Appeals) is correct and legal and does not suffer from any infirmity. The appeal filed by the Revenue is dismissed. Cross Objection filed by the assessee in support of the impugned order is also disposed.(Para 5)

Service Tax: Manpower Recruitment and Supply Agency Services: Penalty: The order of the Commissioner (Appeals) is silent on the factors relied upon by the Additional Commissioner in exercising the discretion under Sec. 80 of the Finance Act. Further, the Commissioner (Appeals) has not chosen to impose any penalty himself. He has again left it to the original authority. In view of the above, the order of the Commissioner (Appeals) insofar as the same related to direction to the original authority to consider imposition of penalty is set aside and the appeal is allowed with consequential relief as per law. (para 5.3)

Service Tax: Manpower recruitment or supply agency services: Reimbursable expenses: Reimbursement of actual expenses : Pre-deposit : Considering the fact that only a small tax amount of Rs. 41,967/- is involved in this case, the requirement of predeposit needs to be waived. (para 4)

Service Tax: Man power recruitment and supply agency service: Remand : There are contradictory facts emerging from the bill raised by the appellant, the ledger of the appellant and the ledger of the recipient. Under these circumstances the case becomes an arguable one and the facts as to what exactly is the service rendered and the remuneration does not become clear. Under these circumstances it is appropriate that the Commissioner consider the issue on merit without insisting on pre-deposit. (para 2).

Service Tax: Manpower Recruitment or Supply Agency's Service / Information Technology software services: Taxable event Demand: The documentary evidence, in particular, bills produced by the appellants clearly disclose the activity of the appellants to be in the nature of providing Manpower Recruitment and Supply Agency services and this is also apparent from the statement of the Managing Director of the appellants. Therefore, the authority below has correctly held that the services rendered by the appellants are in the nature of Manpower Recruitment and Supply Agency services,(Para 5).  

Service Tax: Manpower supply services: Security Services: No overlapping of demands: It clearly stated that Annexures I & II relates to the total taxable amount of services rendered and billed in respect of security service whereas Annexure-III relates to the total taxable amount of services rendered and billed in respect of manpower supply services. (para 4)

Service Tax: Extended period of limitation: To contend that the demand is barred by limitation, it is necessary for the assessee to point out that the facts, which were alleged to have been suppressed, were within the knowledge of the department. No such efforts have been made on behalf of the appellant in the matter in hand. In the case in hand, some of the clients of the assessee had admitted the collection of service tax by the appellant. Yet there was no explanation forthcoming from the appellants for non-payment thereof to the department which clearly justifies invocation of extended period of limitation (para 5,7)

Service Tax: Manpower supply services: Security Services: Pre-deposit : In the facts and circumstances of the case, therefore, we do not find any prima face case having been made out for grant of stay of impugned order or for total waiver of the amount demanded under the impugned order. (para 9)

Manpower Recruitment or Supply Agency: Looking to the nature of services rendered by appellants as per Contract, the services do not fall under this category: Stay granted.

Service Tax: Manpower recruitment Service: Penalty: Section 73(3): Waiver of Show Cause Notice: In this case the show cause notice was issued after one year and that too after the assessee had already paid the service tax with interest. Therefore the assessee is clearly covered by the provisions of Section 73(3) was of Finance Act, 1994. This is also a fit case for lenient view by applying the provisions of Section 80 of Finance Act, 1994. Accordingly, the appeal filed by the appellants is allowed by setting aside the penalty under Section 76 of Finance Act, 1994.(para 4)

Service Tax: Advertising Services: Cenvat Credit: Input: Stay: All goods except light diesel oil, high speed diesel oil and motor spirit, are eligible for availment of Cenvat credit. The appellant has made out a prima facie case for waiver of pre-deposit of the amounts adjudged by the adjudicating authority and upheld by the Commissioner (Appeals). (para 5)

Service Tax: Manpower Recruitment Agency Service: Penalty cannot be imposed in the absence of fraud, suppression: The decision of the Tribunal cited also held that penalty was not imposable under Section 78 in the absence of any fraud, suppression on the part of the assessee. Respectfully following the ratio of the judgment of the Hon’ble High Court in CCE, Jalandhar Vs. Darmania Telecom (supra), the penalty imposed on the appellants is set aide and the appeal is allowed. (para 8.1,9)

Service Tax: Port Services: Pre-Deposit: Tribunal decision in the case of Velji P. & Sons, which stands confirmed by the Hon'ble Supreme Court, is prima-facie applicable to the facts of the instant case. It stands held in the said judgment that activity of handling, loading, unloading and labour arrangements etc. does not fall under category of port services and there is a difference between licence and authorizations. The appellant is entitled to unconditional stay in respect of demands confirmed on the services rendered by them, by treating the same as port services. (para 3)

Service Tax: Manpower, recruitment or supply agency services: Pre-deposit: An amount of Rs. 2.35 lakhs approximately relate to the salaries paid to foremen/khalasees etc. which stand covered under the service of 'manpower, recruitment or supply agency services. The appellant should be directed to deposit the amounts in question. (para 4)

Service Tax: Manpower Recruitment Services: Liability on the amount realized: The service tax liability is obviously subject to realisation of the service charges. Merely because bills have been received by the appellant and the said bills have been reflected in the books of accounts, the service tax is not payable unless the amount is realised. The appeal of the party in respect of service tax demand relating to five bills which was disallowed by the Commissioner (Appeals) is allowed. Accordingly, the penalty is also proportionately reduced. (para 6,7)

Service Tax: Manpower Recruitment and Supply Agency Service: Penalty: Remand: Board's Circular No.97/8/2007-ST dated 23.08.2007 (supra) relied upon by the Appellant, provides that no show cause notice will be issued, in case the amounts of Service Tax and Interest have been paid in a case, where there is no suppression of facts with intent to evade payment of duty. In the present case, when pointed out by the Revenue, the Appellant immediately deposited the amount of Service Tax along with the interest. In these circumstances, The impugned Order is accordingly set aside and the matter is remanded to the Commissioner of Central Excise to decide the matter afresh regarding imposition of penalty after affording an opportunity of hearing to the Appellant. (para 5)

Service Tax: Manpower recruitment service: Commercial training service: If it is accepted that the same manpower will be providing specialized functional services to Pfizer in the second phase of the contract, it is logical to conclude that the manpower has been retained with the appellants during the first phase and not supplied to Pfizer though recruitment of manpower has no doubt been done at the instance of Pfizer. The assistance in recruitment and imparting of specialized training for the recruited personnel cannot be held against the appellants' claim that they have not supplied the manpower but have merely recruited and retained the same for providing specialized services to Pfizer utilizing such manpower. The nature of services required to be provided by the appellants are in the nature of information technology services as the same relates to data management. The appellants are not liable to pay service tax in respect of the services provided by them to Pfizer under the impugned contract. They are eligible for the small scale exemption in respect of the small value of services provided by them to M/s. SAP LABS India Pvt. Ltd. which is below the exemption limit of Rs. 4 lakhs. The impugned order is set aside and the appeal allowed (para 10,11)

Service Tax: Manpower recruitment services: The appellants have deputed skilled personnel including computer engineers to work under the supervision and control of TCS and Infosys personnel in-charge of projects undertaken by TCS and Infosys. The appellants are getting paid in terms of the man hours for the persons deputed to work under the control and supervision of TCS and Infosys. The relevant clauses in the contract in this regard on which much emphasis was sought to be put by the learned senior counsel for the appellants have to be viewed in the light that TCS and Infosys are merely seeking to obtain personnel from the appellants with necessary skill who will work diligently on the projects undertaken by TCS and Infosys. If the appellants were actually to deliver the software projects, TCS and Infosys would have nothing to say about how many personnel the appellants engage to complete the project or who they employ. The appellants are only supplying skilled manpower for which they are liable to pay service tax for supply of manpower services. For similar activities of the appellants in respect of two other clients namely IBM and CAP GEMINI, the appellants have paid service tax under the category `manpower supply service' and their clients in turn took credit of such service tax paid by the appellants. The demand of service tax, cess and interest and imposition of penalty under Section 76 in respect of both the appeals confirmed. (para 12, 13.14,15,16, 17)

Service Tax: Manpower recruitment services: Penalty under Section 78: The penalty, imposed under Section 76 meets the ends of justice and hence no separate penalty under Section 78 is warranted specially keeping in view the fact that penalties under Section 76 and Section 78 have been made mutually exclusive by amendment of the law subsequently. Accordingly the penalty imposed under Section 78 is set aside. (para 17)

Service Tax: Manpower Recruitment or Supply Agency service: Lump-sum work: Entire tenor of the agreement and the purchase orders issued by the appellants’ service recipient clearly indicates the execution of a lump-sum work. This lump-sum work would not fall under the category of providing of service of supply of manpower temporarily or otherwise either directly or indirectly. Impugned order set aside

Service Tax: Supply of manpower service wef 16-06-2005: Scope and liability: Time bar: Whether the terms of the contract is for supply of labourers or is for doing specific item of work. If it is for performance of specified items of work, the same would not be covered by the definition of service since the service covers manpower recruitment or supply. In this case serial nos. 1, 3 and 4 under Rate, serial no. 1 under "house keeping", serial no.6 under "loading and unloading", serial no.9 and 10 under "general" all relate to the number of labourers supplied. Nowhere in the annexure, the actual quantum of work to be done is indicated. Further, the contract also requires the contractor to provide labourers as per the company's requirement for house keeping work, for loading and unloading purpose etc. The payment to be made by the company is related to the number of labourers supplied during a specific period and not related to the quantum of work carried out. For example, in case of house keeping work, it can be related to the area of the building to be cleaned which can be given in square feet. In the case of loading and unloading it can be number of trucks or the weight of the goods loading and unloading etc. whereas both these items do not find place in the contract. Therefore, it is a labour contract and not a contract for specific items of work to be performed. The terms of the contract are very clear and this is nothing but supply of manpower and is covered by the definition of the service. Coming to the question of suppression, in view of the fact that appellant himself had surrendered the registration certificate on 01.6.2005 and within fifteen days the definition changed, reasonable argument would be that appellant was aware of the amendment in the law and the consequent liability to pay service tax on him. Merely because the department did not issue a show cause notice within the specific period, appellant cannot escape the liability. The department cannot be said to know that appellant was engaged or continued to be engaged in supply of manpower. Therefore, it has to be held that the show cause notice is not time barred.(Para 6).

Penalty: In view of the fact that the contract, the way it is worded can be interpreted by an ordinary person as the appellant has and he cannot be faulted if he thinks that he would not be covered by the service, he cannot be blamed. In view of this factor, this is a fit case for applying the Provisions of Section 80 of the Finance Act, 1994 and to take a lenient view against the appellant as regards penalties under Section 76 and Section 78 of the Finance Act, 1994.

Appeal disposed off.

Service Tax: Security Services, relevant period 2001 to 2003: Scope and liability: Remand: Identical proceedings were initiated against them for the period April 2003 to May 2006, by way of issuance of separate show cause notice, which was adjudicated by the Additional Commissioner and after scrutinizing the relevant documents, arrived at findings that excess income was on account of Manpower Supply activities. The order of the Addl. Commissioner dropping the demand has not been appealed against by the Revenue. In view of the above, the impugned order is set aside and matter remanded to Assistant Commissioner for fresh adjudication after taking note of the order passed by the Additional Commissioner(Para 4,5).

Appeal allowed by way of remand.

Service Tax: manpower supply agency service which became taxable w.e.f. 16/06/05: Interest and penalty u/s 77: There is no dispute about the fact that there is delay in obtaining service tax registration and also in payment of service tax. Therefore, in any case, the interest for the period of delay in paying the service tax is required to be paid. As regards, the appellant’s plea that delay in payment of service tax was on account of their ignorance of law as for this reason no penalty is imposable this plea can be examined at the time of regular hearing only.(Para 4).

Pre-deposit ordered.

Manpower Recruitment Agency: The service in question consisted of deputation, to the appellants, of technical personnel by their foreign collaborators. It is not in dispute that this activity for the period from 01.01.2005 is classifiable as 'Manpower Recruitment Supply Service' under Section 65 of the Finance Act, 1994. However, for the prior period, the department is seeking to collect service tax from the appellants in respect of the same activity, under the head ‘Management Consultancy Service'. Waiver granted on the basis of earlier decisions of Tribunal.

Manpower Recruitment Agency : Appellants only providing labour and not undertaking the activity of recruiting manpower for anyone. prior to 16-5-2005, the definition of ‘Manpower Recruitment Agency’ did not include supply of manpower and it is only after the amendment in May, 2005 that, the definition was inserted so as to include supply also for the purpose of service leviable to service tax. Issue covered by Tribunal’s decision in the case of Dinesh Kumar & Co.

Manpower Recruitment Agency : Appellants supplying only manpower covered under ‘Manpower Recruitment Agency’ from the date when it was introduced. Department proceeded to cover the same activity under the category of ‘Cargo Handling Service’ for the previous period. Relying upon its earlier decisions held that supply of manpower cannot be equated with Cargo Handling Service.

Manpower Recruitment : Supply of manpower will not amount to ‘recruitment of manpower’. W.E.F 16-6-2005 service tax leviable on “manpower recruitment or supply agency” which means “any commercial concern engaged in providing any service, directly or indirectly, in any manner for recruitment or supply of manpower, temporarily or otherwise, to a client.”

Stay: Appellants were admittedly supplying manpower to various clients and the department sought to levy service tax under heading Manpower Recruitment agency services. Board’s Circular No. B1/6/2005 -TRU dt. 27-7-2005, clarifies scope of manpower recruitment service prior to 16-6-2005 and simultaneously explained the expansion of the scope of the service from 16-6-2005. Appellants are paying service tax after 16-6-2005. Prima facie case found. Stay granted.

Manpower Recruitment Agency: Payments received in foreign exchange. No evidence produced for receipt of foreign exchange, exemption denied.  Entire service tax deposited, waiver for balance amounts of interest and penalties waived as appellants pleaded that they would produce evidence at final stage.

Service Tax: Manpower recruitment agency: Commercial concern: Appellants have not distributed profits to any member and that as per clause 26 of the Memorandum of Association, dissolution of the appellant-institute has to be undertaken, in accordance with the provisions of Sections, 13 and 14 of the Societies Registration Act, 1860, under which statute the appellants are registered. Section 14 of the Act specifically prohibits distribution of profit to any member on dissolution and any surplus remaining on dissolution will be required to be given to another society with similar object. The appellants are registered as a charitable trust with the Charity Commissioner of Mumbai under the Bombay Public Trusts Act, 1950, and under Section 12-A of the Income-tax Act, 1961 and consequently exempt from payment of income-tax under Section 11 of the Income-tax Act, 1961. An organization that does not declare dividend or distribute surplus/profits to its shareholders, trustees and/or members but ploughs back the surplus for the purpose of an object of the organization would be a charitable organization, if the object thereof is of charitable nature.(Para 5). As per CBEC Circular F.No. 137/71/2006-CX dated 1-11-2006, a commercial concern is an institution or establishment that is primarily engaged in commercial activities.(Para 7). in the case of CCE v. Employ Me, STO 2006 CESTAT 263, the Tribunal has held that the respondent was not a manpower recruitment agency leviable to service tax for the reason that it was not a commercial concern, even though it was collecting some fees from youth for employment. The term "commercial concern" has not been defined under the Finance Act, 1994 and therefore has to be understood in the sense as used by the legislature under the taxable head of "manpower recruitment agency" service(Para 10,11). The appellants are not a commercial concern and therefore not liable to service tax under the taxable head of manpower recruitment agency services. Therefore, the impugned order is set aside(Para 13).

Appeal allowed.

Service Tax: Manpower Recruitment Agency: Scope and liability: At the material point, the definition of 'Manpower Recruitment Agency' relates to any commercial concern engaged in providing any service directly or indirectly in any manner in recruitment of manpower to a client. A perusal of the work order from BHEL indicates that there has been an arrangement between the appellants and BHEL, and according to which BHEL shall pay the appellant Rs. 3.50 per day per man as service charge. What is interesting here relates to the payment mechanism of Service tax which has since been thought of and worked out by BHEL and agreed to by the appellant. Para 6.2 of the and letter reads as follows: "6.2 In addition to above, Service tax at the rate of 5% of the total wages shall be added separately in the wage bill by contractor and the same shall be deposited to Central Excise Authority (Service tax Cell), Jhansi before 15th of the following month by the contractors." In view of the exclusive definition of 'Manpower Recruitment Agency' as prevalent at the relevant point of time all going in harmony with para 6.2 of the agreement cited in para 5, therefore, the appellants are very much covered in the tax net.(Para 7,8).

Pre-deposit ordered.

Service Tax: Manpower Recruitment Agency Services: Refund: In the present case, man power in question is not supplied through recruitment of persons for the hiring organization. The supplied man power never became part of the organization availing of their service. A perusal of the agreement shows that the agreement was clearly for supply of man power and not for recruitment. The agreement with the University at Jodhpur stated that the appellant's "rates to provide the staff have been approved". It is seen from the rate that the rate is minimum wage + 1.9% of the total amount as service charges. Thus, it is clear that the supply was of man power and not for 'recruiting' persons for the University. The appellant was right in its contention that the original payment was erroneous and is required to be refunded. The lower authorities were not justified in rejecting the refund claim.(Para 4,5,7,8).

Appeal allowed.

Service Tax: Reimbursement of expenses: Liability: Demand is on certain amount reimbursed to the appellants by the service recipient towards fixed expenses for supply of human resources in terms of Article 6 of the relevant Agreement. The same provision of the Agreement had also enabled the appellants to receive a consolidated fixed commission per month from the service recipient. On this commission, received during the above period, appellants paid tax. The appellants have made out pima facie case on the strength of an earlier order of this Bench in a similar case viz. Sangamitra Services Agency v. CCE Chennai-IV - STO 2005 CESTAT 178 (Para 2).

Pre-deposit waived, stay granted.
 

Service Tax: Manpower Recruitment Agency or Supply Agency: Stay: There is no finding recorded on the plea of limitation and on time bar. Furthermore, the burden to levy the tax has to be discharged by the Revenue in the present case. The appellants contend that the activity was brought within the Finance Act on 16-6-2005. There is substance in this argument. The appellants have made out a strong case on merits.(Para 4).

Stay application allowed and pre-deposit waived.
 

Service Tax: Manpower Recruitment: Liability on charitable institutions: The respondent is a unit of DIOCESE of Mangalore. The respondent organization imparts training to youth in leadership and later, finds some placement for them. For these services, some fee is charged. Revenue takes the view that if some fee is charged for a service, then it becomes a commercial activity. This view is not at all correct. In the absence of definition of 'Commercial concern' in the Finance Act, 1994 and Service Tax Rules, we have to adopt the popular meaning of the expression 'Commercial concern'. The Oxford Advanced Learner's Dictionary gives the following definitions of 'commercial' as (i) connected with the buying and selling of goods and services; (ii) (only before noun) making or intended to make a profit. The definition used in the statute for Manpower Recruitment is 'Manpower Recruitment Agency' means any Commercial concern engaged in providing service, directly or indirectly, in any manner for recruitment of manpower, to a client. The fee is not a consideration given by a client to the Manpower Recruitment Agency. Revenue has not shown with evidence that the Organizations where the youth are employed paid any consideration to the respondent. The Audited Accounts of the respondent unit reveal that they had not made any profit out of these activities. Respondent is not a 'Commercial concern'. Therefore, they are not liable to pay any Service Tax under this category.(Para 6).
Revenue appeal dismissed.

Service Tax: Manpower recruitment, supply, consultancy service: Scope: The matter has to go back to the original authority to examine the evidence now produced to show that the appellants were not carrying on the activity of Manpower Recruitment Services but were only carrying on Manpower Supply Services, which was not taxable during the relevant period.(Para 4).

Appeal allowed by way of remand.

Service Tax: Man power recruiting agency / Management consultancy services: Waiver of pre-deposit: As management consultant the appellants' plea that they are not providing any service which can be classified as an advice, technical assistance, consultancy so as to qualify being covered as a management consultant has considerable force. However, it is admitted fact that they are providing services relating to management and since the management consultant has been defined as any person who is engaged in providing any service, either directly or indirectly in connection with the management of any organisation, the appellants have not been able to make out a case for full waiver of pre-deposit.(Para 4).

Pre-deposit ordered.
 

Service Tax: Manpower Recruitment Agency: Charitable institution: The Respondent was brought under the Service Tax net under the category Manpower Recruitment Agency. The respondent contested the case on the ground that they are charitable and religious trust recognized by the Income Tax Department and contended that they have not carried out any activity which was commercial in nature. This has been accepted by the Commissioner, Service Tax has already been refunded and hence the stay application is infructuous.(Para 3,4).
Stay application of revenue rejected.

Stay : Security Agency : As regards security personnel, the nature of the service is of only making provision for arranging the security personnel. It is activity of providing security personnel which would be services. Therefore, prima facie, salary payable to the security personnel would stand on a different footing than the services provided by the security agency to procure the security personnel for the client. Waiver granted.