2018 (7) TMI 1532 - AT - Service Tax

Classification of services - It appeared to the department that the respondent were providing Business Auxiliary Services and were instead paying service tax under Manpower Supply service - Whether the provision of services by way of supplying manpower under the aforesaid two types of contract by the respondent amount to business auxiliary services or simply manpower supply services? Held that - The holistic reading of the two contracts clearly indicates that the nature of contract is provision of manpower including manpower to supervise the labour and to ensure that they undertake the work of the requisite quality. It can indeed fall under the category of manpower supply services. Of the sub clauses under the definition of Business Auxiliary Service, the Department wants to classify it under special clause (vii) which is a service incidental or auxiliary to any of the activities specified in sub clauses (i) to (vi). However, neither in the show cause notice nor in the Order-in-Original or in the grounds of appeal, the department clarified as to which of the sub clauses (i) to (vi) is relevant. Unless this is specified, it cannot be examined whether the services provided by the respondent are incidental or auxiliary to that category - the services rendered by the respondent cannot be classified as Business Auxiliary Service . Appeal dismissed - decided against Revenue.

Issues Involved:
1. Classification of services provided by the respondent.
2. Applicability of the extended period for demand under Section 73(1) of the Finance Act, 1994.
3. Imposition of penalties under Sections 76, 77, and 78 of the Finance Act, 1994.

Issue-wise Detailed Analysis:

1. Classification of Services Provided by the Respondent:
The primary issue was whether the services provided by the respondent should be classified under "Business Auxiliary Services" (BAS) or "Manpower Supply Services." The respondent was registered under both categories but paid service tax under "Manpower Supply Services."

- First Agreement: Involved handling "loose broke," collecting rejected and damaged reels, and maintaining cleanliness. Payment was based on the tonnage of work done.
- Second Agreement: Involved deploying unskilled casual labor for various tasks like collecting and transporting loose broke, cutting core pipes, and housekeeping. Payment was based on the number of man-days.

The holistic reading of both contracts indicated that the nature of the contract was primarily the provision of manpower, including supervision to ensure work quality. Therefore, the services could be classified under "Manpower Supply Services."

2. Applicability of the Extended Period for Demand:
The department issued a show cause notice invoking the extended period under the proviso to Section 73(1) of the Finance Act, 1994. The Commissioner (Appeals) found that the entire activity of the assessee was known to the department since their registration in June 2005, making the invocation of the extended period unsustainable.

3. Imposition of Penalties:
The Additional Commissioner had confirmed the demand along with interest and imposed penalties under Sections 76, 77, and 78 of the Finance Act, 1994. However, the Commissioner (Appeals) set aside the penalties, stating that the adjudicating authority failed to show how the activities fell under any of the specific categories of BAS as defined under Section 65(19).

Judgment:
The Tribunal upheld the Order-in-Appeal by the Commissioner (Appeals), rejecting the Revenue's appeal. The Tribunal found no infirmity in the Commissioner (Appeals)'s order and concluded that the services rendered by the respondent could not be classified as "Business Auxiliary Services." Therefore, the appeal was rejected, and the Order-in-Appeal was upheld.

Conclusion:
The Tribunal concluded that the services provided by the respondent were appropriately classified under "Manpower Supply Services" and not "Business Auxiliary Services." The invocation of the extended period for demand was not justified, and the penalties imposed were unsustainable. The appeal was rejected, and the Order-in-Appeal was upheld.

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