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TMI Blog2020 (3) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... Agency Service' for which the appellants had not discharged any Service Tax. Show Cause Notice dated 14.10.2009 was issued for the period from 01.04.2008 to 31.03.2009 to demand Service Tax under 'Manpower Recruitment and Supply Agency Service' on the consideration received from M/s. WTI during this period. After due process of law, the Original Authority vide Order-in-Original No. 24/2011 dated 11.03.2011 confirmed the demand along with interest and imposed penalties. On appeal, the Commissioner (Appeals) vide order impugned herein upheld the same. Hence, this appeal. 3.1 On behalf of the appellant, Learned Counsel Shri. N. Viswanathan appeared and argued the matter. He submitted that the appellant provided services as CAD consultant involving customization of software for M/s. WTI by deputing their engineers to the job site of M/s. WTI. That such services do not fall under 'Manpower Recruitment and Supply Agency Service'. 3.2 After the issuance of the Show Cause Notice dated 14.10.2009, on 10.11.2009 the Superintendent of the concerned Commissionerate had issued a letter to the appellant to pay up Service Tax under the category of 'Information Technology Software Service' which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis of man-hours and it is clearly stated that the employees of the appellant will not be entitled to overtime charges or to work on any holidays, etc. That the agreement is not for providing services under 'Information Technology Software Service' as argued by the appellant. 4.2 He submitted that the Commissioner (Appeals) has rightly relied upon the decision in M/s. Future Focus Infotech India (P) Ltd. (supra) wherein the Tribunal held that when computer engineers were supplied to IT companies to work on software projects and the said engineers were under the supervision and control of the IT companies, the activity would fall under Manpower Recruitment and Supply Agency Service. In the present case also the contract reveals that the employees were under the supervision and control of M/s. WTI to whom the manpower was supplied. The consideration received by the appellant from M/s. WTI during the disputed period as per the agreement would thus be taxable under Manpower Recruitment and Supply Agency Service. 4.3 He argued that the impugned order does not call for any interference. 5. Heard both sides. 6. The moot point for consideration is whether the activity would fall withi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Training, Providing Guidance to User, warranty support functions, etc. The Employees deputed by BA will also perform such other functions as may be called upon to do by WTI from time to time. c) BA shall secure all necessary registrations, authorizations and licenses as required to formalize its appointment hereunder or engagement of Employees by it and fully comply with from time to time and at all times all rules, regulations and laws as may be applicable to performance of its obligations and/or the obligations of its Employees hereunder. d) BA and its Employees assigned by WTI to its clients shall, at all times, comply with security and confidentiality policies and procedures of WTI and clients. . . . 6. CONSIDERATION 6.1. For the work to be carried out by BA for WTI, WTI shall pay BA technical fees as under: a) WTI will pay to BA at the rates agreed in terms of Schedule of Technical Fees attached hereto. A person month shall consist of minimum eight (8) hours per day multiplied by number of working days in a calendar month at the location of work. b) In case of deputation of BA Employees on overseas assignments, WTI shall bear all expenses connected with visa, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supervision of M/s. WTI. 8. The very same issue was discussed by the Tribunal in M/s. Future Focus Infotech India (P) Ltd. (supra). The relevant portion of the order is extracted as under : "12. We find that the arguments advanced on behalf of the appellants are mainly based on the various clauses in the agreements executed between them and their clients namely TCS and Infosys. We are of the view that not only the wordings of these clauses are to be considered but also how different clauses of the contracts actually operate 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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