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2013 (12) TMI 208 - AT - Service TaxDemand of service tax - Manpower recruitment or supply Agency Services - Ship Management Services - Whether the services rendered by the appellant is covered within the definition of Manpower Recruitment and Supply Agency Service prior to 1.5.2006 - Held that - the appellant was engaged as a Manning Manager for providing competent, certified and experienced personnel on the vessel as required for running and maintenances of the vessel and the agreement was valid for a period of 12 months. The responsibilities included engagement and providing the required personnel including Master, Chief Engineer, other Officer, Petty Officers and crew and to attend to all matters pertaining to their discipline, labour relations, welfare and amenities. In the case of M/s SICAL as per the Letter of Intent, the appellant was required to arrange for masters, officers and crew on-board the vessel as required a consideration of Rs.7.10 lakhs per month per vessel and the contract was for a period of one year. The appellant was also responsible to ensure that morale of the crew on-board is maintained so that they are able to discharge the functions efficiently. From these contracts/agreements entered into by the appellant with his clients, it is clear that the appellant was engaged in supply of skilled/unskilled manpower. Therefore, the said activity is specifically and clearly covered under Manpower Recruitment or Supply Agency Service as defined under section 65(68) read with Section 65(105)9k) of the Finance Act, 1994 prior to 1.5.2006. - Decided against the assessee. Extended period limitation - Held that - appellant had collected the Service Tax from the customers but failed to remit the same at the relevant time. - The appellant did not self-assess the tax liability nor did they file any returns declaring the correct and true facts. There is thus gross failure on the part of the appellant. This conduct of the appellant very clearly shows their intention to defy the law and evade Service Tax. Therefore, the extended period of time has been rightly invoked in the present case and accordingly, the Service Tax demand is liable to be upheld. Penalty u/s 78 - Held that - appellant has suppressed the facts of rendering the service and collection of service tax in a few cases and even where they had collected the Service Tax, they did not remit the same to the exchequer. Therefore, there is suppression and willful mis-statement of facts on the part of the appellant with an intent to evade Service Tax. Hence, the mandatory penalty under Section 78 is justified - Decided against assessee.
Issues Involved:
1. Taxability of services prior to 1.5.2006 under "Manpower Recruitment or Supply Agency Service." 2. Taxability of services post 1.5.2006 under "Ship Management Services." 3. Liability of sub-contractors when the main contractor has discharged the Service Tax. 4. Taxability of emoluments recovered from customers towards supply of manpower. 5. Time-bar for the demand of Service Tax. 6. Penalties under Sections 76, 77, and 78 of the Finance Act, 1994. Analysis of the Judgment: 1. Taxability of Services Prior to 1.5.2006: The Tribunal examined whether the services rendered by the appellant fell under "Manpower Recruitment or Supply Agency Service" before 1.5.2006. The agreements with clients required the appellant to provide skilled personnel for ship operations, and the crew remained employees of the appellant. As per Section 65(68) of the Finance Act, 1994, "Manpower recruitment or supply agency" is defined as any person engaged in providing services for recruitment or supply of manpower. The Tribunal concluded that the appellant's activities were covered under this category prior to 1.5.2006. 2. Taxability of Services Post 1.5.2006: From 1.5.2006, "Ship Management Services" was introduced under Section 65(96a), which includes the engagement or providing of crews. The Tribunal held that while the appellant's services were taxable under "Ship Management Services" post 1.5.2006, this did not negate their taxability under "Manpower Recruitment or Supply Agency Service" prior to this date. The appellant's argument that the introduction of a specific category implied non-taxability under the previous category was rejected. 3. Liability of Sub-contractors: The appellant argued that since the main contractor (M/s SICAL) had paid Service Tax, they, as sub-contractors, were not liable. The Tribunal rejected this, stating that under the Value Added Tax regime, each service provider must discharge their tax liability, and the main contractor's payment does not exempt the sub-contractor. This was supported by the Tribunal's decisions in SEW Construction Ltd. and Vijay Sharma & Co. 4. Taxability of Emoluments: The appellant contended that Service Tax should only apply to service charges, not the emoluments recovered for manpower supply. The Tribunal cited multiple decisions, including Panther Detective Services and Sri. Bhagavathy Traders, which held that the taxable value includes the gross amount charged, encompassing salaries paid to supplied personnel. 5. Time-bar for the Demand of Service Tax: The Tribunal found that the appellant had collected Service Tax from clients but failed to remit it, indicating awareness of their tax liability. The appellant's actions, such as issuing revised invoices without Service Tax, demonstrated an intent to evade tax. Consequently, the extended period for demand was justified, and the Service Tax demand was upheld. 6. Penalties: Penalties were imposed under Sections 76, 77, and 78 of the Finance Act, 1994. The Tribunal upheld these penalties, noting that Section 76 applies automatically for default in tax payment, and Section 77 for non-compliance with statutory provisions. The penalty under Section 78 was justified due to the appellant's suppression of facts and intent to evade tax. However, for the period post 10.5.2008, penalty under Section 76 was not sustainable due to amendments in Section 78. Conclusion: The Tribunal upheld the Service Tax demand along with interest and penalties under Sections 76, 77, and 78 of the Finance Act, 1994, with the modification that penalty under Section 76 is not applicable post 10.5.2008. The appeal was disposed of accordingly.
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