2016 (7) TMI 996 - AT - Service Tax

Manpower supply services or not - Consequent to the BIFR Scheme the Lease Agreement was signed between the appellant (PTL) and Apollo Tyres Ltd. (ATL) on May 14 2005. In the Lease Agreement it was inter-alia mentioned that in addition to payment of lease rental ATL will reimburse to the appellant PTL the actual expenses including the cost of personal. Held that - even if the appellant (PTL) is called as service provider we do not find any service recipient in this case as the personnel (manpower) who are manufacturing ATL brand tyres and tubes continued and continues to be in the pay roll of the appellant (PTL) and from the documents on record we cannot say that the appellant (PTL) has provided any service in relation to recruitment and supply of manpower in any manner temporarily or otherwise and the appellant company has never been and presently also not in the business of manpower supply or recruitment temporarily or otherwise in any manner. The appellant has argued that even on the ground of revenue neutrality they should not be charged any service tax. Revenue has argued that revenue neutrality cannot be a ground for non-levy of service tax if the activity is otherwise covered under Service Tax law. We do not find any reason to consider this argument of revenue neutrality of the appellant or the counter argument of the Revenue that revenue neutrality cannot be a ground for non-levy of service tax as the subject activities and operations of the appellant have not fulfilled the ingredients of the definition of the manpower recruitment or supply agency service as per the provisions of Section 65 (105) (k) of the Finance Act 1994 as discussed in earlier parts. The Revenue has tried to make a case to bring the subject activity and operations/transactions of the appellant within the definition of manpower recruitment and supply agency service. However when facts on the ground and the documents indicate otherwise the Revenue cannot sustain its case beyond mere statement and it cannot succeed legally. - Demand set aside - Decided in favor of assessee.

Summary

Issues Involved:
- Classification of service under the Finance Act, 1994.
- Applicability of service tax on reimbursements received.
- Interpretation of "manpower recruitment or supply agency service."
- Revenue neutrality.
- Allegations of willful suppression and extended period of demand.

Issue-wise Detailed Analysis:

1. Classification of Service under the Finance Act, 1994:
The central issue was whether the reimbursements received by the appellant from M/s Apollo Tyres Ltd. (ATL) for personnel costs fell under the category of "manpower recruitment or supply agency service" as defined in Section 65 (105) (k) of the Finance Act, 1994. The Tribunal examined the definitions of "manpower recruitment or supply agency service" before and after amendments and concluded that the appellant was not engaged in providing manpower supply services. The appellant's operations were part of a special arrangement under a BIFR-approved Scheme, involving joint operations between the appellant and ATL, where the appellant's personnel continued to work under its control and supervision.

2. Applicability of Service Tax on Reimbursements Received:
The Tribunal found that the reimbursements for personnel costs were part of the joint operations agreement and not indicative of manpower supply. The personnel remained on the appellant's payroll, and the appellant was responsible for compliance with statutory rules concerning its employees. The Tribunal emphasized that the appellant was not in the business of manpower supply, and the reimbursement of actual expenses did not constitute a taxable service under the definition of "manpower recruitment or supply agency service."

3. Interpretation of "Manpower Recruitment or Supply Agency Service":
The Tribunal analyzed the definitions of "manpower recruitment or supply agency service" and concluded that the appellant's activities did not meet the criteria for this service. The appellant was not engaged in providing manpower to ATL but was involved in joint operations for manufacturing ATL's products using its own personnel. The Tribunal cited relevant case laws, including Vidarbha Iron and Steel Co. Ltd. and Arvind Mills Ltd., to support the view that the appellant was not functioning as a commercial concern engaged in manpower supply.

4. Revenue Neutrality:
The appellant argued that any service tax payable would be available as credit to ATL, making it a case of revenue neutrality. However, the Tribunal did not find it necessary to delve into this argument, as the appellant's activities were not covered under the definition of "manpower recruitment or supply agency service."

5. Allegations of Willful Suppression and Extended Period of Demand:
The Tribunal found no evidence of willful suppression or intention to evade payment of service tax by the appellant. The facts indicated that the appellant had not withheld any information from the Revenue, and there was no valid ground for demanding tax beyond the normal period. The Tribunal noted that the appellant's activities did not fall under the taxable service category, rendering the extended period of demand irrelevant.

Conclusion:
The Tribunal allowed the appeal, concluding that the appellant's activities did not constitute "manpower recruitment or supply agency service" under the Finance Act, 1994. The appellant was not liable to pay service tax on the reimbursements received from ATL for personnel costs. The Tribunal emphasized the special nature of the joint operations agreement and the lack of evidence for willful suppression, thereby granting consequential relief to the appellant.