9911796707
TMI Blog2011 (5) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... order - X X X X Extracts X X X X X X X X Extracts X X X X ..... d the penalties. 4. Ld. counsel submits that the Board was discharging only a sovereign function by way of implementing the scheme under the Act and, therefore, it cannot be called upon to pay any service tax. To buttress this argument, the ld. counsel has taken us through various provisions of the Act as also various provisions of the Rules framed thereunder besides the provisions of the scheme. The endeavour is to show that the Board is under the direct control and supervision of the State Government and that their functions are in the nature of carrying out a welfare measure for security guards. According to the ld. counsel, this activity would not come within the ambit of any of the aforesaid services. Focus has been particularly placed on "Security Agency" service. Referring to the definition of "Security Agency", the ld. counsel submits that, for any entity to qualify to be a "Security Agency", it should be a 'commercial concern'. It is submitted that the Board constituted under the Act has never been a 'commercial concern' inasmuch as its solitary function was to implement welfare scheme for security guards. It is argued that, without a 'commercial element' in the activity/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s prior to the period of dispute involved in the present case. 7. Thus it is claimed that the appellant has prima facie case against the impugned demand of service tax and the associated penalties. It is also pointed out that the appellant has no funds for making any pre-deposit. Hence waiver of pre-deposit and stay of recovery are prayed for. 8. The ld. JCDR has also referred to the various provisions of 'the 1981 Act' and 'the scheme' thereunder. Then he has referred to the definition of "Security Agency" as amended with effect from 1-5-2006. It is pointed out that the amended definition of "Security Agency" is applicable to the present case and that, in the cases cited by the ld. counsel and decided by the Commissioner(Adj.) and the Commissioner (Appeals), the provision considered was the definition of "Security Agency" pre-amendment The word "person" stands substituted for " commercial concern" in the definition of "Security Agency" and, therefore, according to the ld.JCDR, the Security Guards Board is also liable to pay service tax, as they would fall within the meaning of "person" figuring in the definition of "Security Agency" as amended. It is submitted that the expressio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evant to the present case. In one of those cases, the question was whether the Security Guards Board can be considered to be an "industry" under the 'Industrial Disputes Act'. In the other case, the Hon'ble High Court, quoting His Lordship Krishna Iyer, Justice, held that the functions of the Board can be said to be primarily or substantially to administer the law. The ld.JCDR submits that the view taken by the Hon'ble High Court for purposes of other statutes can be of no aid to the appellant in the present case wherein the question is whether the appellant can be held to be a "security agency" for purposes of section 65(94) of the Finance Act, 1994, as amended. Finally, it is urged that the appellant be directed to pre-deposit the dues adjudged against them. 11. After giving careful consideration to the submissions, we are inclined to hold that the appellant would fit in the amended definition of "security agency". This definition reads thus : "'security agency' means any person engaged in the business of rendering services relating to the security of any property, whether movable or immovable, or of any person, in any manner and includes the services of investigation, detection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice relating to security of property or person. The substitution of word "person" for the expression "commercial concern" seems to indicate that the definition of "Security Agency", as amended, is free from the "commercial" element. If that be so, the meaning of the term "business" can be understood in the manner suggested by the ld.JCDR. In the result, a statutory organization or body discharging even sovereign function without any commercial ingredient therein can also render "security agency" service. This is, precisely, what can be seen in some areas of functioning of CISF and other similar statutory organizations like the appellant. Prima facie, therefore, the appellant is liable to pay service tax under the head "Security Agency" service on the amounts collected by them from various registered establishments to whom security guards were deployed by the appellant during the period of dispute. 12. As rightly pointed out by the ld.JCDR, the Order-in-Original and the Order-in-Appeal relied upon by the ld.counsel are easily distinguishable, both the orders involving consideration of the definition of "Security Agency" pre-amendment, during which period the definition had a 'co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rting with this matter, we should also go on record that we are not impressed with the demand of service tax under the head "Manpower Recruitment Agency" service in this case. Neither in the show-cause notice nor in the impugned order nor in the submissions of the JCDR is anything to indicate that this appellant rendered 'Manpower Recruitment Agency" service at any time during the period of dispute. The Revenue has no case that any consideration was collected by the Board for having provided 'Manpower Recruitment Agency" service to the private establishments registered with it. In any case, the gross taxable value determined by the Commissioner does not provide any breakup between "Manpower Recruitment Agency" service and "Security Agency" service. What is indicated in the annexure to the show-cause notice is a total taxable value of Rs. 1,05,43, 67,264 including two components as follows:- Rs. 25,61,83,111 towards levy under clause 40 of the scheme; Rs. 79,81,84,153 towards wages & allowances under clause 31 of the scheme. There is no place for any taxable value in respect of "Manpower Recruitment Agency" service in the above structure of the gross taxable value determined by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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