9911796707
TMI Blog2010 (10) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... amount under Section 78 of the Finance Act, 1994. 2. The Commissioner on analysis of the materials on record has held that the appellants had recruited certain graduates and then had trained them in the field of software development and software consultancy and maintained a roll of all such trained graduates and based on the requirements of the clients as per the mutual agreement between the appellants and the clients used to depute such software professionals to the locations specified by the clients and those software professionals undertook various projects of the appellants' clients and worked for them under the directions as per the requirements of the clients and therefore the activity was clearly covered by the category of "Manpower Recruitment or Supply Agency's Service" within the meaning of the said expression under the said Act and therefore, the tax liability. The period covered is from 16-6-2005 to 31-3-2006, 18-4-2006 to 31-3-2007 and 11-5-2007 to 4-10-2007. 3. The main contention on behalf of the appellants is that the service rendered is in the nature of software development and maintenance activity and not the manpower supply activity as has been held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are in the nature of Manpower Recruitment and Supply Agency services. 6. The bills issued by the appellants in relation to the services rendered clearly refer to the services of Senior Consultant and Consultant being made available to the clients. It is true that in the statement of the Managing Director, it was stated that the appellants are engaged in providing expertise and software development services and roll of skilled trained software engineers were maintained by the appellants and based on the requirements of the clients, the appellants provided the said services. It was also stated that requisite software is developed by their own employees based on the directions of the clients at various premises specified by the clients, after completion of projects, persons were deputed to another projects and remained on appellants' rolls and work on the premises specified by the clients for the development of software as per the requirements of the clients. Coupled with this, if one peruses the bills issued for the services rendered by the appellant, the same, prima facie, disclose that the finding arrived at by the authorities below regarding the nature of the service rendere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble with them in their books of accounts. 13. Further, M/s. Diksha had not volunteered to obtain Service Tax registration on their own, and it was only after the issue was taken up by the BZU that they had initially opted for registration itself. Hence, it appears that M/s. Diksha had wilfully suppressed the fact of rendering the said Services, with an intention to evade payment of appropriate Service Tax, and but for the investigations by the officers of the BZU this evasion would not hove come to light. M/s. Diksha had submitted that they would be submitting all the relevant particulars immediately after the above said Statement but had not submitted all the requisite particulars immediately. It appears that they were wilfully suppressing the requisite information and not submitting the relevant particulars with an intention to evade payment of appropriate Service Tax. In his statement dated 22-11-2007 (Annexure - 4), Shri Srikanth B. Iyer, Managing Director of M/s. Diksha, has confirmed that they have no intention to pay their Service Tax liability, and that whatever amount has been paid by them is due to a wrong guidance from one of their clients. Further, even after effe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty. It, therefore, requires strict consideration. Period of limitation provided for in the Act bars the jurisdiction of the Commissioner to initiate a proceeding for imposition of penalty on the expiry thereof. The proviso appended to Section 11A(1) of the Act makes an exception to the said Rule, the ingredients whereof are thus required to be established for invoking the extended period of limitation. If on the materials produced by the parties, the Tribunal had arrived at a finding of fact that there had been no suppression on the part of the appellant after 22nd January, 1991, the question of invoking the extended period of jurisdiction did not arise. The show cause notice dated 28th March, 1994 thus having been issued after the expiry of the period prescribed under Section 11A of the Act, was clearly barred by limitation." The above finding was arrived at in the facts of the case wherein it was not disputed that the assessee on or about 22-1-1991 had informed the Section Officer of the Central Excise, Roorkee that the assessee had been manufacturing M.S. Conduit pipes and its production was exempt from payment of excise duty in terms of Notification No. 202/88-C.E., dt. 20-5-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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