2008 (8) TMI 278 - AT - Service Tax

Service consisted of deputation, to the appellants, of technical personnel by their foreign collaborators - appellants have been paying service tax under the head Manpower Recruitment Supply Service since 1-1-2005 and that such payments are accepted by the department - impugned demand for the period prior to 16-8-2002 under the head Management Consultancy Service - prima facie case for the appellants in view of the decisions of the Tribunal on liability of recipient on import of service stay granted

Summary

Issues: Classification of service for service tax liability; applicability of proviso to Section 73(1) of the Finance Act, 1994; imposition of penalties under Sections 76, 77, and 78 of the Act.

Analysis:
1. Classification of Service: The Tribunal examined the nature of the service provided by the appellants, focusing on whether it falls under 'Manpower Recruitment Supply Service' or 'Management Consultancy Service.' The department argued for the latter classification, while the appellants contended that the service should be classified as 'Manpower Recruitment Supply Service' since 1-1-2005. The Tribunal noted that for the period from 1-1-2005, the activity is classifiable as 'Manpower Recruitment Supply Service' under Section 65 of the Finance Act, 1994. However, for the prior period, the department sought to collect service tax under 'Management Consultancy Service.' Relying on previous Tribunal decisions, including M/s. Aditya Cement and M/s. Hindustan Zinc Ltd, the Tribunal found a prima facie case in favor of the appellants, leading to a waiver of pre-deposit and stay of recovery for the dues adjudged by the revisional authority.

2. Applicability of Proviso to Section 73(1): The Commissioner (revisional authority) had demanded service tax from the appellants for the period prior to 16-8-2002 under the proviso to Section 73(1) of the Finance Act, 1994. The original authority also imposed penalties under Sections 76 and 77 of the Act. However, the Tribunal's analysis primarily focused on the correct classification of the service provided by the appellants, which influenced the decision regarding the applicability of the proviso to Section 73(1) and the imposition of penalties.

3. Imposition of Penalties: The original authority imposed penalties on the appellants under Sections 76 and 77 of the Finance Act, 1994, while the Commissioner demanded a significant penalty of Rs. 40 lakhs under Section 78 of the Act. The Tribunal's decision to waive pre-deposit and stay recovery of dues was based on the classification of the service and the prima facie case found in favor of the appellants, as supported by relevant Tribunal decisions. The judgment did not delve deeply into the specifics of the penalties imposed but focused more on the classification issue and its implications on the overall tax liability and penalties.