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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 ..... in providing manpower for development of software and therefore the services provided by them during the period from October 2005 to March 2007 has to be treated as manpower supply service and therefore the appellant is liable to pay service tax for rendering the said service. Further it was also found that appellant had received certain services from abroad for development of market etc. in respect of some products and a view was taken that this would amount to importation of services. Since the service providers did not have an office in India, the appellant was liable to pay service tax as per the provisions of Section 66A of Finance Act 1994. Accordingly, proceedings were initiated. After considering the submissions made by the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... responsible for ensuring that what is expected to be delivered is delivered by the manpower; he also submits that a Project Manager is required to be appointed by the client; he also draws our attention to the impugned order wherein the Commissioner has reached a conclusion that the activity undertaken by the appellant is 'manpower supply service' because even though they call the service provider a software developer, the payment terms are only in terms of manpower and payments are calculated in terms of per diem or per man hour. He also submits after 16.5.2008, the appellants have been paying service tax classifying the service provided by them as 'information technology service' and the department has accepted the same; further, he also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Commissioner (A.R.) and his reliance on the decision of this Tribunal in the case of Future Focus Infotech India Pvt. Ltd.(supra). For better appreciation, we reproduce paragraphs 11,12, & 13 of the order. 11. The learned special counsel further points out that the manpower supplied have to work under the guidance and control of TCS and Infosys. The appellants have no mandate to execute any work independently as normally a consulting engineer would do. He also brings it to our notice that if a person leaves, the appellants are required to provide suitable substitute. This indicates that the appellants are responsible only for supplying manpower, and they are not responsible for completion of any software project per se. 12. We find tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vices to TCS and Infosys. Any person or organization obtaining skilled personnel has to ensure that such men deliver work of standard quality. No one would employ a person who is not skilled enough and no one would pay for shoddy work even if done by a skilled man. The relevant clauses in the contract in this regard on which much emphasis was sought to be put by the learned senior counsel for the appellants have to be viewed in the light that TCS and Infosys are merely seeking to obtain personnel from the appellants with necessary skill who will work diligently on the projects undertaken by TCS and Infosys. From the above observations of the Tribunal, we find that the facts of that case are similar to the present situation before us. It wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccept this submission at this stage. This is because, there is no system of assessment by the department now. The assessee is expected to assess the service which is nothing but classification, valuation and work out the liability and pay the tax. In the absence of an assessment by the Revenue, we cannot say that what has been done has been accepted. In any case. it is always possible that if no differential tax is payable, the officers may not take any view about it. Nevertheless, this aspect will have to be considered at the time of final hearing when all the decisions will have to be gone through and this submission can be considered in detail. At this stage when we are hearing only stay application, we consider that the precedent decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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