2009 (9) TMI 743 - Commissioner - Service Tax

Summary

Issues:
1. Whether the activities of 'supply of manpower' fall under 'manpower recruitment or supply agency' service.
2. Whether there is intention on the part of the appellant in not registering and paying Service tax.

Analysis:

Issue 1:
The appellant contended that the lower authority did not address their final reply properly regarding the applicability of 'manpower recruitment or supply agency' service. However, the lower authority concluded that the activities of the appellant fell under this category as defined in Section 65 of the Act. The definition includes any person providing services for recruitment or supply of manpower to a client. Since the appellant supplied manpower commercially to clients, the lower authority's conclusion was upheld.

Issue 2:
Regarding the appellant's intention in not registering and paying Service tax, it was found that the appellant had registered under 'Business Auxiliary Service' in 2004 but did not pay Service tax. The appellant was unsure if their service fell under 'manpower recruitment or supply agency' service. The record did not show deliberate evasion, fraud, or suppression of facts by the appellant. The appellant's confusion was evident, and upon notification by the department, they promptly paid the dues. As per legal precedent, the extended period for penalty imposition is inapplicable without evidence of deliberate evasion. Therefore, the penalty under Section 78 was set aside. However, the appellant was liable to pay penalties under Sections 76 and 77 for late payment and interest under Section 75.

In conclusion, the appeal was disposed of with modifications, setting aside the penalty under Section 78 but upholding penalties under Sections 76 and 77, along with interest under Section 75.