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TMI Blog2014 (4) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... , supply of manpower would be exigible to service tax effective from 16/06/2005. Appellant's activity comes within the purview of supply of manpower on or after 16/06/2005 and the appellant would be liable to discharge service tax liability on the consideration received w.e.f. that date along with interest. The appellant would also be liable to penalty under the provisions of Section 76 of the Act for the default/delay in payment of service tax. No penalty under Section 78 is warranted - Decided partly in favour of assessee. - Appeal No. ST/176/2007 & ST/222/2009 - - - Dated:- 15-1-2014 - P R Chandrasekharan and Anil Choudhary, Member, JJ. For the Appellant : Mrs. Padmavati Patil, Adv. For the Respondent : Shri D D Joshi, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.1 The department was of the view that the appellant M/s. SSKL has supplied manpower to M/s. Bajaj as defined in Section 65 (21) read with Section 65(105)(k) of the Finance Act, 1994, further read with Section 65(68) read with Section 65(105)(k) for the period on or after 16/06/2005 and, therefore, on the consideration received the appellant is liable to discharge service tax liability along with interest thereon and also liable to penalty for contravention of the provisions of Finance Act, 1994 and the rules made thereunder. Accordingly, three show cause notices dated, 12/12/2005, 09/10/2006 and 09/10/2006 were issued to the appellant demanding service tax of Rs. 3,44,025/- along with interest thereon for the period March 2003 to July, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 16, 2005 as the activity was not within the purview of the taxable service as defined in law. For the period on or after 16/06/2005, the learned counsel submits that the appellant was not engaged in supply of manpower to M/s. Bajaj temporarily or otherwise though they have an understanding with M/s. Bajaj to engage the staff of the appellant in the factory run by M/s. Bajaj and that would not constitute supply of manpower as envisaged in law. It is also contended that the appellant was under the bona fide belief that the activity undertaken by the appellant did not come within the purview of the taxable service as defined. Reliance is placed on the decisions of this Tribunal in Arvind Mills Ltd. vs. Commissioner of Central Excise; Paramou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gards the demands for the period prior to 16/06/2005, we notice that Section 65(21) read with Section 65(105)(k), as it stood at the relevant time, dealt with only recruitment of manpower for a client. In the present case, the appellant has not undertaken any recruitment activity for M/s. Bajaj and, therefore, for the period up to 16/06/2005 the activity of the appellant does not come within the purview of service tax under the category of 'manpower recruitment agency service' as defined in law. However, w.e.f. 16/06/2005 the scope of the taxable service was widened bringing within the purview not only recruitment but also supply of manpower and the taxable service was also amended so as to levy on the activity of supply of manpower ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of manpower by the appellant to M/s. Bajaj and, therefore, for the period w.e.f. 16/06/2005, the appellant's activity would be clearly covered within the definition of 'supply of manpower' as defined in Section 65(68) read with Section 659(105)(k) of the Finance Act, 1994 and we hold accordingly. Consequently, the appellant would be liable to pay service tax on the consideration received along with interest thereon. 5.2 As regards the reliance placed by the appellant in the decision of this Tribunal in the case of Arvind Mills Ltd., cited supra, the said decision dealt with a situation where staff were deputed for working in the group companies and whether such deputation of staff would amount to supply of manpower. Similarly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement of facts with an intent to evade payment of duty, fraud, collusion, etc. are involved. In the appeal of the Revenue, the demand is for the normal period and Revenue was already aware of the activity of the appellant for the previous period inasmuch as three show cause notices have been issued earlier. Therefore, the question of alleging suppression or willful mis-statement of facts with intent to evade payment of duty would not arise at all. Therefore, imposition of penalty under Section 78 is not warranted. 6. In sum, we hold that the appellant's activity comes within the purview of supply of manpower on or after 16/06/2005 and the appellant would be liable to discharge service tax liability on the consideration received w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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