2007 (9) TMI 40 - AT - Service Tax

Manpower Recruitment or supply agency service versus commercial concern Being a charitable organization the appellant can not be held as Commercial Concern for the purpose of levy of service tax. Appellant was not liable to service tax demand set aside

Issues Involved:
1. Liability of service tax as a "manpower recruitment agency."
2. Definition and applicability of "commercial concern."
3. Charitable status and exemption from service tax.
4. Interpretation of relevant sections and precedents.

Detailed Analysis:

1. Liability of Service Tax as a "Manpower Recruitment Agency":
The appellants were engaged in conducting examinations for recruitment for various organizations and were charged with service tax under the category of "manpower recruitment agency" as defined in Section 65(40) of the Finance Act, 1994. The Commissioner of Central Excise (Appeals) upheld the demand of service tax amounting to Rs. 1,00,60,498/- along with penalties under Sections 75A, 76, 77, and 78 of the Finance Act, 1994, for the period from October 1998 to March 2003. The appellants contended that they were not a commercial concern and hence not liable to service tax.

2. Definition and Applicability of "Commercial Concern":
The appellants argued that they were not a commercial concern as per Section 65(68) of the Finance Act, which defines "manpower recruitment agency" as "any commercial concern engaged in providing any service, directly or indirectly, in any manner for recruitment of manpower, to a client." They emphasized that they did not distribute profits to any member and were registered under the Societies Registration Act, 1860, which prohibits profit distribution on dissolution. The Tribunal noted that the appellants were registered as a charitable trust and exempt from income tax under Section 11 of the Income-tax Act, 1961.

3. Charitable Status and Exemption from Service Tax:
The Tribunal referred to several judicial precedents to determine the charitable status of the appellants. In the case of Addl. CIT v. Surat Art Silk Cloth Manufacturers Association, the Supreme Court held that an organization with a predominant charitable purpose does not lose its character merely because it earns some profit. Similarly, in Trustees of Tribune Trust, the Privy Council held that charging fees does not negate the charitable nature of an organization if the profits are ploughed back for charitable purposes. The Tribunal also cited the CBEC Circular F.No. 137/71/2006-CX, which clarified that institutions like IITs or IIMs, which charge fees but do not aim to make a profit, are not commercial concerns.

4. Interpretation of Relevant Sections and Precedents:
The Tribunal examined the definition of "commercial concern" under various taxable services in the Finance Act, 1994, and concluded that a commercial concern is primarily engaged in activities with financial gain as an objective. The Tribunal relied on the decision in CCE v. Employ Me, where it was held that an organization collecting fees but not operating for profit was not a commercial concern. The Tribunal also referred to the decision in BCCI v. CCE, where BCCI was not considered a commercial concern despite earning revenue from advertising activities, as it was a charitable institution under the Income-tax Act.

Conclusion:
The Tribunal concluded that the appellants were not a commercial concern and therefore not liable to service tax under the category of manpower recruitment agency services. The appeal was allowed, and the impugned order was set aside without addressing other arguments such as limitation.

(Pronounced in Court on 6-9-2007)

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