2019 (9) TMI 221 - AT - Service Tax

Manpower Recruitment/Supply Agency Services - period October, 2007 to March, 2012 - invocation of extended period of limitation - HELD THAT - Admittedly SCN stand issued on 20.04.2013 covering the period from October, 2007 to March, 2012 - The appellant is a proprietory Unit and as soon as they came to know about their tax liability, they got themselves registered with the Department and started paying Service Tax regularly. Further, the appellant was not collected any Service Tax from M/s IFFCO. Further, the scrutiny of the agreement also reveals that there was a clause to the effect that if Service Tax is applicable, that will be payable by M/s IFFCO on production of documentary evidence. This clearly shows that the Service Tax liability shall be borne by M/s IFFCO, in which case there may not be motive on the part of the assessee to avoid payment of service Tax. These facts leads to establish bona-fide on the part of the assessee. Also, Revenue has not referred to any positive evidence on record to establish mala-fide intent on the part of the appellant. Mere non-taking of registration and non-filing of ST-3 Returns under a bona-fide belief of non-taxability of the Services, would not establish suppression, with mala-fide intent on the part of the assessee - the longer period would not be available. Penalty - HELD THAT - As longer period is not available, penalty also set aside. As a part of the demand falls within the limitation period, the same shall be calculated by the Original Authority to whom the matter is being remanded for the said purpose - Appeal allowed by way of remand.

Issues:
Demand of Service Tax on Manpower Recruitment/Supply Agency Services, imposition of penalty, merits of the case, time bar for initiating proceedings, invocation of extended period, calculation of tax liability, imposition of penalty.

Analysis:
1. Demand of Service Tax on Manpower Recruitment/Supply Agency Services:
The judgment confirms the demand of Service Tax amounting to ?13,34,188 against the appellant for providing Manpower Recruitment/Supply Agency Services to M/s IFFCO between October 2007 to March 2012. The appellant had not collected or paid Service Tax on these services, leading to the initiation of proceedings against them.

2. Imposition of Penalty:
Along with the demand of Service Tax, a penalty of an identical amount was imposed on the appellant. The penalty was upheld by the Original Authority and Commissioner (Appeals). However, the Tribunal set aside the penalty considering the facts and circumstances of the case, especially regarding the bona fide belief of the appellant regarding the taxability of the services provided.

3. Merits of the Case:
The appellant contended that while Manpower Recruitment Services were taxable, they had also provided Maintenance & Repair Services to M/s IFFCO. They argued that the tax liability should only be confirmed on the amount received for Manpower Recruitment Services and not for Maintenance & Repair Services. The Tribunal accepted this argument and directed the Lower Authorities to quantify the demand for Manpower Recruitment Services only for the normal period.

4. Time Bar for Initiating Proceedings:
The appellant raised the issue of time bar, claiming that they were not aware of their liability to pay Service Tax and hence did not collect it from M/s IFFCO. The Tribunal noted the appellant's bona fide belief and lack of mala-fide intent, leading to the conclusion that the longer period for initiating proceedings was not available to the Revenue.

5. Invocation of Extended Period:
The Revenue justified the invocation of the extended period for proceedings due to the appellant not being registered with the Department or filing any ST-3 Returns. However, the Tribunal found that the appellant's registration and regular payment of Service Tax upon becoming aware of their liability demonstrated a lack of intent to avoid tax payment, thereby rejecting the invocation of the extended period.

6. Calculation of Tax Liability:
The Tribunal directed the Lower Authorities to calculate the tax liability only on the services related to Manpower Recruitment & Supply Agency Services, excluding Maintenance & Repair Services due to the absence of any allegations regarding tax liability for the latter in the show cause notice.

7. Imposition of Penalty:
As the longer period was deemed not available, the Tribunal set aside the imposition of penalty upon the appellant, concluding the appeal in favor of the appellant on this ground.

In conclusion, the judgment addressed various issues related to the demand of Service Tax, penalty imposition, merits of the case, time bar for proceedings, calculation of tax liability, and imposition of penalty, providing detailed analysis and reasoning for each aspect considered.

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