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TMI Blog2012 (4) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... (SICAL), M/s Essar, amongst others and are in receipts of sums of money towards the wages/salaries of the officers and crew members so supplied in addition to service charges for the service rendered. The department was of the view that the service undertaken by the appellants is liable to be taxed under the category of "Manpower Recruitment or Supply Agency Service" for the period prior to 01.05.2006 and under the category of "Ship Management Services" w.e.f 01.05.2006. The agreement entered into by the applicant indicated the following namely:- (a) The appellant is appointed as the Manning Contractor. (b) The appellant has to arrange for Master, Officers and Crew-on-board the vessel as required under Merchant Shipping Act, 1958 and any other International Maritime Act and as per manning standards. (c) The officers and crew so supplied remain as employees of the appellant. (d) The appellant would provide victualling and housekeeping services, and (e) The appellant would be paid consolidated charges per calendar month. (ii) The statements of Managing Director, Accounts Assistant and Director of the appellant firm were recorded under section 14 of the Central Excise Act read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubsequent to 1.5.2006, M/s SICAL, the main contractor has paid Service Tax on the entire amount and they were only sub-contractor and, therefore, they are not required to pay any Service Tax as the main contractor has discharged the Service Tax liability. (iii) with regard to the services rendered to M/s ABG Shipping Co., though they have recovered Service Tax from the customers they are not required to discharge the Service Tax liability to the exchequer, as section 73A which mandates deposit of Service Tax with exchequer in respect of Service Tax collected from the customers came into force only from 18.04.2006 and, therefore, they are not liable to discharge any service tax liability even though they have recovered the service tax from their customers. (iv) it is also their contention that they are not required to discharge service tax liability on the emoluments recovered from the customers towards supply of manpower and if at all, the service tax liability should be confined only on the service charges received for supply of manpower excluding the emoluments received for the manpower supplied by them. (v) the demand is time barred as the notice has been issued much after th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per the agreement entered into by the appellant with their customers, it is seen that the appellant has to arrange for Master, officers and crew on-board the vessels as required under the Merchant Shipping Act, 1958 and any other International Maritime Act and as per manning standards. It is further seen that the crew supplied would remain as employees of the appellant and the appellant will be paid consolidated charges every calendar month. Under section 65(68) of the Finance Act, 1994, 'Manpower Recruitment and Supply Agency Service' has been defined as follows:- "Manpower Recruitment and Supply Agency" means any person engaged in providing any service directly or indirectly, in any manner, for recruitment or supply of manpower, temporarily or otherwise, to a client." The 'taxable service' is defined as "any service provided or to be provided to a client, by the Manpower Recruitment or Supply Agency" in relation to the recruitment or supply of manpower, temporarily or otherwise in any manner" under section 65(105)(k) of the Finance Act, 1994. 5.2 From the activity undertaken by the appellant, it is clear that they have supplied Master, officers and crew on board the vessels ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Act, 1994, the service which is more specific has to be preferred over the service which is general in nature. The said section also provides that earlier the better principle should be adopted for classifying the service and since the 'Manpower Recruitment or Supply Agency Service' came into Service Tax net before 'Ship Management Service', prima facie, the appellants are liable to discharge the Service Tax liability under the category of 'Manpower Recruitment or Supply Agency Service'. 5.3 The appellant has also argued that as far as M/s SICAL is concerned, after 1.5.2006, M/s SICAL has discharged the Service Tax liability on the entire amount and, therefore, they are not required to pay service tax as they are only sub-contractors. This argument is totally incorrect especially in the context of a Value Added Tax regime, which is in force in India. Under the Value Added Tax regime, which applies to Service Tax also, the provider of taxable services has to discharge the service tax liability and if such services are used as input services by other service provider or manufacturer of the goods down the line, they can avail input service credit on the Service Tax paid by the inp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d disclose promotion and marketing of the service rendered by the service recipient to the others and there must be tangible evidence to establish the same. In case of subsequent entry mere fact of display of logo of the service recipient would lead to presumption about promotion and advertisement of the business of the client. Such a presumption is not available in case of earlier entry." 5.7 Further, the CBE & C in their letter dated 29.02.2008 has clarified that introduction of a later entry under the Service Tax does not ipso facto mean that the said activity was not covered under the previous entry though they were specifically included under the definition of taxable services. This would also go to show that merely because the activity undertaken by the appellant is covered under the entry introduced later amongst others, it does not mean that if the said activity was specifically covered under the taxable category of services earlier, there would not be any service tax liability. 6. Thus, we are of the view that the appellant has not made out any prima facie case for grant of complete waiver of pre-deposit. Inasmuch as the appellant has collected the amount of service tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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