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TMI Blog2018 (5) TMI 1135X X X X Extracts X X X X X X X X Extracts X X X X ..... ir, Member (Judicial) And Hon ble Mr. Raju, Member (Technical) Shri Anshul Jain, Advocate, for appellant Shri M.K. Sarangi, Joint Commissioner (AR), for respondent ORDER Per: Ramesh Nair The brief facts of the case are that the Appellant are engaged in providing manpower supply service. They were issued show cause notice alleging that they have delayed in making service tax payment during the period July 2008 to March 2011 and also did not pay interest on same. That in terms of point of taxation rules they did not issue bills within 14 days of rendering of service or on receipt of advance did not pay service tax. The show cause notice proposed demand of service tax and to appropriate the same against the amount already ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugned order was passed ex-parte. The Appellant has pleaded that their activity does not fall under the category of Manpower Supply Service and hence not taxable. They have relied upon Tribunal s judgment in their own case as reported in 2014 (34) STR 410 wherein the demands were set aside. The Tribunal s findings are as under : 5. We have carefully considered the submissions made by both the sides. 5.1 As per Section 65(68) of Finance Act, 1994 manpower recruitment or 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 any other person and the taxable service is defined under Section 65(105)(k) as service rend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory and therefore, the services rendered by the appellants cannot be classified under manpower recruitment or supply agency services, by any stretch of imagination. Therefore, the impugned demands by classifying the activity under manpower supply service have to be set aside. 5.2 It is further seen that the activity undertaken by the appellant merits classification under BAS which is defined under Section 65(19) as follows :- business auxiliary service means any service in relation to, - (i) promotion or marketing or sale of goods produced or provided by or belonging to the client; or (ii) promotion or marketing of service provided by the client; or (iii) any customer care service provided on behalf of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the appeals are allowed on merits, we are not going into the other issues raised by the appellants. We are informed that in some cases, the appellants have made payments. If the appellants have made any payments towards these demands, refund of the same shall be considered by the department in accordance with the law. 5. The Ld. AR has submitted that the revenue s appeal before the aforesaid Tribunal order is pending before the Hon ble High Court. We find that the revenue s appeal has only been admitted and there are no further order. In such case we deem it appropriate to remand the case back to the adjudicating authority to consider the facts of the case afresh and pass orders in the light of Tribunal s earlier above order. The imp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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