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TMI Blog2019 (1) TMI 323X X X X Extracts X X X X X X X X Extracts X X X X ..... viding services of Manpower Supply - the appellant is liable to pay the service tax - demand upheld. The identical issue was addressed by this Bench in the case of M/s. Future Focus Infotech Pvt. Ltd. [2018 (4) TMI 1041 - CESTAT CHENNAI] wherein this Bench has held that the appellant was supplying skilled manpower for which it was liable to pay service tax for supply of manpower services. Time Limitation - Held that:- Indeed the issue is an interpretational one - the invocation of extended period is unsustainable. However, the Show Cause Notice itself suffers from an incurable deficiency with respect to the calculation of tax liability proposed therein - the demand of 95,68,100/- with interest thereon in respect of alleged Manpower Supply Services for the period June 2005 to 15.05.2008 will not sustain even for the normal period on this score and will require to be set aside - penalty also set aside. CENVAT Credit - input services - Staff Insurance - Travels - Catering Services - Held that:- The period involved is from June 2005 to May 2008 when the definition of input services had a wide ambit as it included the words activities relating to business . This being so, denial of thes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice and also imposed equal penalties under Section 78 of the Finance Act, 1994. Hence, this appeal. 3. When the matter came up for hearing, Ld. Counsel Shri. M.N. Bharathi and Shri. S. Muthu Venkataraman appearing for the appellant made oral and written submissions, which can be broadly summarized as under : (i) They adverted to the Show Cause Notice as well as the Stay Order passed in the above appeal to argue that appellants have not been provided with the split-up details of the demand raised in the Show Cause Notice; (ii) The income of the appellant comes from various streams such as sale of software directly to end clients, export of services to overseas clients and other professional services. However, the demand has been raised without specifying as to what activities from these income streams are taxable. After receipt of the Show Cause Notice, the appellants in spite of their best efforts could not find out as to which transaction with which clients are liable to service tax from these various streams of income; (iii) It is submitted that service tax is not payable on export sales or software development. Further, the liability of service tax, if any, has to be studied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Meerut - 2011 (22) S.T.R. 19 (Tri. - Del.); (viii) The appellants have declared the entire transactions with all their clients in their ledgers, books of accounts, bank records, etc. In other words, the entire income received from the clients is shown as business income in the company accounts. There is no allegation to the effect that the appellant has suppressed the transactions in question nor concealed the same with an intention to evade service tax. It is a fact that during the course of enquiry and verification, on being directed the appellant provided the ledger extracts and the notice was issued based on the above, without even providing work sheet for the taxable value on which tax is to be paid. Reliance is placed on the following decisions to submit that extended period of limitation cannot be invoked: * Commissioner of C.Ex., Cus. & S.Tax Vs. Suvidha Engineers India Ltd. - 2017 (50) S.T.R. 268 (Allhd.) upheld by the Hon'ble Supreme Court in Commissioner Vs. Suvidha Engineers India Ltd. - 2018 (11) G.S.T.L. J83 (S.C.); * Commissioner of C.Ex., Noida Vs. Accurate Chemical Industries - 2014 (310) E.L.T. 441 (Allhd.); (ix) It is further submitted that the underlyin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discernable differences in the facts of the dispute in respect of Tribunal decisions in the appellant's own case (Future Focus Infotech) and that in respect of Cognizant Tech. Solutions. The Tribunal has clearly found that Cognizant Tech. Solutions were themselves responsible for the development, information technology software etc., whereas in respect of Future Focus Infotech, that work is down only by TCS, Infosys etc. who have only obtained man power skill in information technology for such purposes. Hence the facts of Future Focus Infotech and Cognizant Tech. Solutions are definitely different. We are therefore not able to appreciate ld. Advocate's contention that the Tribunal has given contrasting decisions on same sets of facts in these cases. . . . 6.8 We therefore find that even as per the facts, the appellants were only providing manpower, albeit those having software technology skills, to organizations like TCS, Infosys etc. But the information technology development was not done by the appellant themselves nor was it contracted to them. On the other hand, such software or IT development was done only by TCS, Infosys etc., by utilizing the man power supplied by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring of the Stay Petition. This is evidenced by the Stay Order dated 05.02.2014, wherein the Bench recorded as under: "It is seen from the impugned order that service tax was demanded on the total taxable value of ₹ 8,08,32,487/- for the period 2005-06 to 2008-09 as tabulated under the following table :- Value related to supply of manpower Year Taxable Value Service Tax 2005-06 1,86,39,674 19,01,247 2006-07 1,68,14,628 20,58,110 2007-08 3,94,29,307 48,73,462 2008-09 59,48,878 7,35,281 Total 8,08,32,487 95,68,100 2. The applicant has been submitting from the stage of adjudication that they have not understood what is the split up of the individual figures which are adding up to the figures for each year as stated in the above table. Last time, when this matter came up for hearing on 09.01.2014, the Revenue was orally instructed to furnish the break up. The Ld. AR for Revenue sought time to place the work-sheet at the time of next hearing. Today, the Ld. AR has submitted a letter C. No. IV/03/197/2011-R&T dt. 5.2.2014 enclosing the calculation based on the ledger accounts of the assessee. We find that even now it is not clear what are the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter. This being so, we find that not only the proceedings are vitiated by the said defect, but also we do not foresee any useful purpose for remanding the matter for re-consideration de novo by the adjudicating authority. 13. In arriving at this conclusion, we find resonance in the ratio taken by the Hon'ble High Court of Calcutta in Delta International Ltd. (supra) relied on by the Ld. Counsel. The Hon'ble High Court in that judgement has held that in respect of the Show Cause Notice which indicated the amount of customs duty but reasons in support thereof were found to be ambiguous, the Notice itself was held as devoid of grounds, reasons or particulars in support of its claim against the rules of natural justice and hence, not sustainable. The relevant portions of the judgement are as under : "16. In our opinion, whether they have the power to do so or not is very secondary. No case has prima facie been made out against the appellant/writ petitioner which he can be required to answer. Under well settled principles if a show cause notice does not disclose any contravention or infraction of any provision of law the person or such show cause notice is a nullity. But, here, it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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