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2015 (5) TMI 807 - AT - Service TaxManpower Recruitment and Supply service - principle of mutuality - Invocation of extended period of limitation - Held that - issue is prima facie covered by the Gujarat High Court 2013 (7) TMI 510 - GUJARAT HIGH COURT and Jharkhand High Court 2012 (6) TMI 636 - Jharkhand High Court decisions as also by the Tribunal decision in the case of Federation of Indian Chambers of Commerce and Industry 2014 (5) TMI 183 - CESTAT NEW DELHI . Apart from that we also prima facie find favour in the appellant s contention that demand is barred by limitation. On this ground we are of the view that appellant has a good prima facie case in its favour - Stay granted.
Issues:
1. Whether the activity of the appellant falls under the category of 'Manpower Recruitment and Supply'? 2. Whether the demand raised by the Revenue for the period April 2005 to March 2010 is justified? 3. Whether the demand under the category of Club or Association service is valid? 4. Whether the appellant's activity is liable to service tax considering the mutuality of interest between the association and its members? 5. Whether the demand is barred by limitation? 6. Whether the service tax not being collected from individual members affects the case? Analysis: 1. The appellant, an association of stevedores, was alleged by the Revenue to be providing services falling under 'Manpower Recruitment and Supply'. The appellant argued that they are not a commercial concern but an association of members supplying persons based on internal needs. Citing decisions of the Jharkhand and Gujarat High Courts, the appellant contended that the mutual interest between the association and its members exempts them from service tax liability. The Tribunal found merit in the appellant's argument and granted a stay on the demand. 2. The Revenue raised a demand for the period April 2005 to March 2010, amounting to Rs. 2,13,99,842. The appellant challenged the demand on the grounds of the nature of their activity and the mutuality of interest with their members. The Tribunal observed that the issue was debatable and found in favor of the appellant, holding that the demand was prima facie barred by limitation. Consequently, the Tribunal allowed the stay petition unconditionally. 3. Apart from the main demand, there was a smaller demand of around Rs. 8,000 under the category of Club or Association service. The appellant's argument regarding the nature of their association and the absence of service tax collection from individual members was crucial in contesting this demand. The Tribunal, considering the appellant's contentions and the precedents cited, found in favor of the appellant and granted the stay on this demand as well. 4. The appellant emphasized the mutuality of interest between the association and its members, stating that they only provided services to their members and not to external parties. By highlighting decisions of High Courts and the Tribunal supporting exemptions for charitable services to members, the appellant argued against the applicability of service tax to their activities. The Tribunal acknowledged the validity of these arguments and granted the stay petition based on the prima facie case in favor of the appellant. 5. The issue of limitation played a significant role in the case, with the appellant asserting that the demand was time-barred due to the association's incorporation in 1959 and consistent operational methodology. The Tribunal agreed with the appellant's stance, considering the debatable nature of the issue and the absence of malafide intention in non-payment of service tax. This factor contributed to the Tribunal's decision to grant an unconditional stay on the demand. 6. The appellant clarified that even if they were liable to pay service tax, the credit available to individual members could offset this liability, resulting in a revenue-neutral situation. This argument, along with the absence of service tax collection from members, further supported the appellant's case for exemption from service tax. The Tribunal, taking into account this aspect, found in favor of the appellant and granted the stay petition unconditionally.
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