2006 (7) TMI 90 - AT - Service Tax

Manpower recruitment Agency Appellant contended that they not liable to pay service tax on the said activity on the basis that the period of dispute was not fall under the period when it is taxable - Held that appellant liable for full waiver and staying the recovery

Summary

Issues:
1. Waiver of pre-deposit of Service Tax and penalty
2. Allegation of providing drivers, labourers, computer operators, wardliers to clients
3. Time bar for demands
4. Burden of proof on Revenue
5. Stay application

Analysis:
1. The appellants sought waiver of pre-deposit of Service Tax and penalty. A Show Cause Notice was issued for the period 1998-99 to 2003-04. No allegation of suppression of facts was found, and no finding on time bar was given in the impugned order. Despite the appellants' plea, they were proceeded against for recovery of Service Tax based on providing manpower services to clients.

2. The Counsel argued that the appellants' activity did not fall under the category of Manpower Recruitment Agency or Supply Agency, and the demands were time-barred as the activity was brought under the Finance Act from 16-6-2005. The burden of proof to categorize the activity under the said category was on the Revenue and could not be shifted to the appellants. The Commissioner's findings on the burden of proof were deemed not in accordance with the law.

3. The JCDR relied on findings by the original authority and requested to put the appellants on terms. However, it was noted that there was no finding on the plea of limitation and time bar. The stay application was required to be allowed solely on this ground. The burden to levy tax had to be discharged by the Revenue, and the appellants' argument that the activity was brought under the Finance Act on 16-6-2005 was considered valid.

4. After careful consideration, it was found that there was no finding on the plea of limitation and time bar. The stay application was required to be allowed, and the burden to levy tax had to be discharged by the Revenue. The appellants made a strong case on merits, and the stay application was allowed, granting full waiver and staying the recovery. The appeal was scheduled for an out-of-turn hearing on 13th September, 2006.