2014 (6) TMI 656 - AT - Service Tax

Waiver of pre deposit - Demand of limitation - Bar of limitation - Held that - The appellant furnished the required particulars through a letter dt. 08/08/2006 wherein they, inter alia, offered to supply copies of the relevant agreements, which were submitted on 17/11/2006. It thus appears that all the relevant documents and information were furnished by the appellant to the Department during July to November 2006. However, the show-cause notice came to be issued as late as in April 2010. It is also on record that, consistent with the stand taken by the appellant in their correspondence with the Department, they took registration under BAS and other services and started paying service tax accordingly on the activities covered by the very same agreements. Prima facie, the appellant cannot be said to have suppressed material facts with intent to evade payment of service tax - stay granted.

Issues:
1. Waiver of pre-deposit and stay of recovery sought by the appellant regarding adjudged dues.
2. Liability of the appellant to pay service tax under 'manpower recruitment or supply agency service' during a specific period.
3. Classification of the activity under 'manpower recruitment or supply agency service' based on the agreements with Infosys and IBM.
4. Examination of limitation in relation to the period for which service tax was demanded.
5. Consideration of correspondence between the appellant and the Department to determine suppression of material facts.
6. Assessment of findings of the adjudicating authority and imposition of penalty under Section 78.

Analysis:
1. The appellant filed an application seeking waiver of pre-deposit and stay of recovery concerning the confirmed demand of service tax and education cesses totaling over Rs.4.48 crores. The impugned order imposed penalties, including a penalty of Rs.1,53,96,558/- under Section 78, raising the question of the appellant's liability to pay service tax during a specific period under 'manpower recruitment or supply agency service'. The appellant referred to relevant Stay Orders, while the Commissioner(AR) cited a Final Order from a co-ordinate Bench, leading to a debate on the classification of the activity.

2. The impugned demand was on payments made to the appellant by Infosys and IBM under respective 'Sub-contracting Agreements'. The agreement with Infosys required the appellant to provide services specified in 'Task Orders', indicating 'manpower recruitment or supply service'. The absence of Task Orders and unsatisfactory explanation on the payment mode led to a prima facie view against the appellant, considering the nature of services envisaged under the agreements with Infosys and IBM.

3. The issue of limitation was raised concerning the period beyond the normal limitation period. Correspondence between the appellant and the Department from July to November 2006 revealed the furnishing of relevant documents and information. The appellant's registration under BAS and payment of service tax from 01/08/2006 indicated no intent to evade payment. The findings of the adjudicating authority were insufficient to invoke the proviso to Section 73(1) of the Finance Act, 1994, or justify the penalty under Section 78.

4. Granting waiver and stay solely on the ground of limitation, the Tribunal ordered accordingly, emphasizing the importance of the timeline of correspondence and registration under BAS as factors supporting the appellant's position.

This detailed analysis covers the issues of waiver of pre-deposit, liability for service tax, classification of services, limitation, suppression of facts, and penalties imposed, providing a comprehensive overview of the judgment delivered by the Appellate Tribunal CESTAT Bangalore.

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