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TMI Blog2013 (9) TMI 431X X X X Extracts X X X X X X X X Extracts X X X X ..... n though the assessee claimed it under ‘information technology service’ - No doubt there were clauses relating to deliverables and quality of work in the contracts but these by themselves do not indicate that the appellants are providing information technology software services to TCS and Infosys - Any person or organization obtaining skilled personnel had to ensure that such men deliver work of standard quality - No one would employ a person who was not skilled enough and no one would pay for shoddy work even if done by a skilled man. Waiver of Pre-deposit - prima facie case is against the assessee - stay granted partly. - Appeal No.: ST/2079/2012 - ORDER No. MO/25466/2013 - Dated:- 27-3-2013 - SHRI P. G. CHACKO AND SHRI B.S.V. MURTH ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have also been imposed. In addition to the stay application filed by the appellant, after going through the records we find that both the Revenue as well as the appellant have filed Miscellaneous Applications for early hearing of the stay application. Even though these applications have not been listed, since the stay application has been heard and is being decided in this order, we consider both these applications to be infructuous and therefore liable to be rejected. Accordingly, the Miscellaneous Application No. ST/EH/25709/2013 filed by the Revenue and Miscellaneous Application No. ST/EH/25517/2013 filed by the appellant are rejected. 2. The learned Chartered Accountant on behalf of the appellant took us through the agreements and ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... angalore [2011(21) STR 303(Tri-Bang)] and Integra Micro Software Services Pvt. Ltd. Vs. Commissioner of Service Tax, Bangalore [2012(25) S.T.R. 369(Tri-Bang)] to submit that if a service has been classified under one category at a later date, for the earlier period, the department cannot contend the same to be classifiable under another service. 3. The learned Commissioner (A.R.) on the other hand submits that in this case what they are supplying is only manpower and the payments are in terms of manpower; the client is required to make payments on that basis and if any individual is found not up to the mark, the client can get him replaced by the appellant; he submits that under similar circumstances and in a similar situation in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have to be seen. We find that the appellants are supplying various skilled personnel to TCS and Infosys to work on software projects undertaken by TCS and Infosys from their respective clients. The personnel deputed by the appellants appear to be working at the site of the clients of TCS and Infosys or in the premises of TCS and Infosys. There is no evidence produced before us to indicate that any of the software projects undertaken by TCS and Infosys from their respective clients has been sub-contracted to the appellants or that the appellants are working on any such project on their own. What has emerged clearly is that the appellants have deputed skilled personnel including computer engineers to work under the supervision and control of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of two other clients namely IBM and CAP GEMINI, the appellants have paid service tax under the category of manpower supply service and their clients in turn took credit of such Service paid by the appellants . According to him this is what weighed with the tribunal to come to this conclusion. We feel this is not an appropriate way of looking at the decision of this Tribunal. We cannot reach conclusions based on the fact that the appellant has paid service tax in respect one transaction and therefore he is required to pay service tax on a similar transaction even if it is not taxable. We are more inclined to look at paragraphs 11,12, 13 which we have reproduced wherein the Tribunal considered the facts and circumstances of the agreemen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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