2019 (1) TMI 323 - AT - Service Tax

Non-payment of service tax - Manpower supply services - Demand of Service tax - input services - CENVAT Credit - Held that - The appellant had supplied personnel to M/s. Infosys and other clients as per requirements of the latter. These personnel are utilized for development, enhancement, implementation and maintenance of software projects. It is also pertinent to note that such development, enhancement, etc., of software is not assigned to the appellants themselves, but is done only by M/s. Infosys and the other clients. No doubt, the personnel so supplied may well be qualified software personnel. Nonetheless, once such personnel have to function under the overall supervision, control and management of the client, the appellant is only providing services of Manpower Supply - the appellant is liable to pay the service tax - demand upheld. The identical issue was addressed by this Bench in the case of M/s. Future Focus Infotech Pvt. Ltd. 2018 (4) TMI 1041 - CESTAT CHENNAI wherein this Bench has held that the appellant was supplying skilled manpower for which it was liable to pay service tax for supply of manpower services. Time Limitation - Held that - Indeed the issue is an interpretational one - the invocation of extended period is unsustainable. However, the Show Cause Notice itself suffers from an incurable deficiency with respect to the calculation of tax liability proposed therein - the demand of ₹ 95,68,100/- with interest thereon in respect of alleged Manpower Supply Services for the period June 2005 to 15.05.2008 will not sustain even for the normal period on this score and will require to be set aside - penalty also set aside. CENVAT Credit - input services - Staff Insurance - Travels - Catering Services - Held that - The period involved is from June 2005 to May 2008 when the definition of input services had a wide ambit as it included the words activities relating to business . This being so, denial of these input Credits on the ground that they have no nexus in providing output services cannot sustain - credit allowed. Appeal allowed - decided in favor of appellant.

Issues Involved:
1. Classification of services provided by the appellants.
2. Eligibility of CENVAT Credit on input services.
3. Validity and specificity of the Show Cause Notice (SCN).
4. Invocation of the extended period of limitation.
5. Quantification and clarity of the tax demand.

Issue-wise Detailed Analysis:

1. Classification of Services Provided by the Appellants:
The primary issue was whether the services provided by the appellants, which involved deputing personnel to clients like M/s. Infosys for software development, fell under "Manpower Recruitment or Supply Agency Services." The Department argued that the appellants were supplying manpower who worked under the supervision of the clients, thus qualifying as manpower supply services. The Tribunal referred to the case of M/s. Future Focus Infotech Pvt. Ltd., where it was held that providing skilled manpower for software development, under the control of clients like Infosys, falls under "Manpower Supply Services." The Tribunal concluded that the appellants were indeed providing manpower supply services and were liable for service tax under this category.

2. Eligibility of CENVAT Credit on Input Services:
The appellants had availed CENVAT Credit on services like Staff Insurance, Travels, and Catering Services. The Department contended these were ineligible as input services. However, the Tribunal noted that during the relevant period (June 2005 to May 2008), the definition of input services was broad and included "activities relating to business." Consequently, the denial of these credits was deemed unsustainable, and the demand of ?2,01,732/- with interest and penalties was set aside.

3. Validity and Specificity of the Show Cause Notice (SCN):
The appellants argued that the SCN was vague, lacking specific details about the taxable activities and the split-up of the demand. The Tribunal found merit in this contention, noting that the SCN did not clarify whether the taxable value included exempt income streams like export services. The lack of clarity hindered the appellants' ability to defend themselves, rendering the SCN deficient and unsustainable. The Tribunal emphasized that a vague SCN violates natural justice principles, referencing the Calcutta High Court's decision in Delta International Ltd.

4. Invocation of the Extended Period of Limitation:
The appellants contended that the extended period of limitation was inapplicable as the issue involved interpretation of law, and they were under a bona fide belief based on previous Tribunal decisions (e.g., Cognizant Tech Solutions) that their activities did not fall under manpower supply services. The Tribunal agreed, noting the interpretational nature of the issue and set aside the demand raised invoking the extended period.

5. Quantification and Clarity of the Tax Demand:
The Tribunal highlighted the lack of clarity in the quantification of the tax demand, as evidenced during the stay petition hearing. The Revenue failed to provide a clear breakdown of the taxable value, making it difficult for the appellants to correlate the figures in the SCN with their accounts. The Tribunal concluded that the SCN suffered from an incurable deficiency regarding the calculation of the tax liability, rendering the demand of ?95,68,100/- with interest unsustainable. Consequently, the penalties associated with this demand were also set aside.

Conclusion:
The Tribunal allowed the appeal, setting aside the demands and penalties related to both the alleged manpower supply services and the ineligible input services. The deficiencies in the SCN, the interpretational nature of the issue, and the broad definition of input services during the relevant period were critical factors in the Tribunal's decision.

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