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TMI Blog2023 (6) TMI 303X X X X Extracts X X X X X X X X Extracts X X X X ..... is also given along with its definition, the assessee should be sufficiently able to understand the allegations and defend the notice. The argument put forward by the Ld. Counsel that SCN is bereft of details and therefore appellant did not get reasonable opportunity to defend the case and therefore SCN is itself invalid, does not find favour. Business Support Service - HELD THAT:- The argument put forward before us is that appellant has given the premises on rent along with its infrastructure facilities to NIIT. However, the appellant has not been able to establish this argument with supporting evidence in the nature of lease / licence deed or rent receipts. The said contention of the appellant is neither tenable nor acceptable. Thus the demand under BSS is sustained. Manpower Recruitment or Supply Agency Service - HELD THAT:- The very same issue was considered by the Tribunal in the appellant s own case and vide Final Order No.40679/2020 dated 03.03.2020 [ 2020 (3) TMI 315 - CESTAT CHENNAI] , the Tribunal has upheld the demand. The various clauses in the agreement executed between the appellant (BA) and M/s. WTI on the analysed and appreciated by the Tribunal. The Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facilities like computer systems, refreshments, lunch etc. to their corporate clients for which though appellant is liable to pay service under the category of Business Support Service (BSS), they had not discharged any service tax on the consideration received for providing such infrastructure facilities. It was also noticed that the appellant received consideration towards supply of employees as per the requirement of their client viz., M/s.WTI Advance Technologies Ltd. (WTI, for short). The said activity is taxable under the category of Manpower Recruitment and Supply Agency Service (MRSS). The appellant had not discharged service tax under this category also. Show cause notice dated 28.01.2008 was issued for demanding the service tax for the period May 2006 and March 2007 under BSS and June 2005 to May 2007 under MRSS. The show cause notice was adjudicated vide OIO dated 31.07.2008. Aggrieved by the order of the adjudicating authority, appellant preferred appeal before Commissioner (Appeals) who vide OIA dated 31.01.2011 upheld the OIO. The said show cause notice and the impugned orders therein is the subject matter of Appeal No.ST/266/2011. 3. The appellant was issued a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erein office infrastructures are provided. In the case of the appellant, only class rooms along with its infrastructure is given on rent on daily basis to give lectures by eminent personalities to the employees. Appellant only collects rent for renting out the class room. The appellant has not provided any infrastructure support for conduct of an office. The class rooms having been leased out to the organizations which conduct classes / lectures in these class rooms, the amount received by appellant cannot be considered as consideration received for providing BSS. The class rooms leased out / given for rent on daily basis cannot be considered as infrastructure facilities given for regular transactions of business. The appellant is neither providing office facility nor are they providing any of the specified facilities along with the classroom. The activity therefore does not fall within the levy of service tax under the category of Business Support Service . 6. In regard to the demand under MRSS, it is explained by the Ld. Counsel that as per the agreement entered by them with WTI, it has been clearly specified under clause 3(b) of the agreement that the appellant and their emp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.2021, the Hon ble High Court had granted interim stay of the Order-in-Original dated 11.03.2011 till the next date of hearing i.e. 03.06.2021. It is submitted that the Order-in-Original being stayed by the Hon ble High Court, the ratio of the decision of the Tribunal would not be applicable to this appeal which is for a different period. 9. Without prejudice to the claim that the amount received by them from NIIT is only towards renting of the class room to NIIT and that demand would not fall under the category of BSS, it is explained by the Ld. Counsel that said taxable service under BSS will not apply for providing tea snacks to the students / lecturer which will only attract services under Outdoor catering services or renting of movable goods which is not at all a taxable service. 10. An amount of Rs.4,725/- along with Education Cess (Rs.95/-) and Secondary Higher Education Cess (Rs.47/-) has been confirmed for the period April 2007 to March 2008 under Commercial Training or Coaching Services . It is submitted that the training courses were conducted by NIIT and therefore appellant is not liable to pay the service tax. 11. Ld. Counsel also argued on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Manpower Recruitment or Supply Agency Service when the service is in relation to supply of manpower to a client though temporarily. The service rendered by the appellant includes technical assistance in respect of computer application software system development, implementation and maintenance work undertaken by WTI from its various clients and they also depute its employees to WTI / clients of WTI at various locations to work on the project along with WTI project team. This activity of the appellant is nothing but supply of manpower to their client M/s.WTI. 16. As per clause 3 (a) of the Business Associate agreement it is seen that upon request of WTI, the appellant will offer other services of its selected / skilled employees to work on the projects identified and allocated by WTI at its sole and absolute discretion and to carry out such functions and project related activities as may allocated by WTI from time to time on a fixed monthly fee basis. Para 6.1a of agreement states that WTI will pay to the appellant an amount as agreed. A person month shall consist of minimum of (8) hours per day multiplied by number of working days in a calendar month at the location of work. Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls as to how the activity would fit into the definition of BSS and MRSS , the appellant has been prejudiced as they were not able to put forward proper defence and counter the allegations. To support such an argument, Ld. Counsel has relied upon the decision of the Hon ble Supreme Court in the case of Commissioner of Central Excise, Bangalore Vs Brindavan Beverages (P) Ltd. 2007 (213) ELT 487 (SC) as well as the decision in the case of Oryx Fisheries Private Ltd. Vs Union of India - 2011 (266) ELT 422 (SC). We do not have any quarrel with the proposition that a SCN has to contain details of allegations raised against the assessee. On perusing the SCN issued by the department on 28.01.2008 as well as on 27.11.2009, it is seen that the department has indeed explained how the income received by them would fall under various categories of services. The definition of these services have been stated in the SCN and how consideration received from NIIT as well as from WTI would be taxable under (1) Business Support Service, Commercial Training or Coaching Service (2) Man Power Recruitment or Supply Agency Service. 23. In the SCN dated 29.09.2008 one demand is made under the category ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also given along with its definition, the assessee should be sufficiently able to understand the allegations and defend the notice. The argument put forward by the Ld. Counsel that SCN is bereft of details and therefore appellant did not get reasonable opportunity to defend the case and therefore SCN is itself invalid, does not find favour with us. 25. The first issue is with regard to the demand under Business Support Service . The appellant does not dispute that the premises of the class room along with its infrastructure were used by NIIT for conducting computer classes. The argument put forward before us is that appellant has given the premises on rent along with its infrastructure facilities to NIIT. However, the appellant has not been able to establish this argument with supporting evidence in the nature of lease / licence deed or rent receipts. The said contention of the appellant is neither tenable nor acceptable. We therefore hold that the demand under BSS is sustained. 26. The second issue is with regard to the demand under Manpower Recruitment or Supply Agency Service . The very same issue was considered by the Tribunal in the appellant s own case and vide Fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder overall guidance and supervision of WTI, as per terms of this agreement. b) BA and its Employees on the project will perform all activities commonly known and referred to as Software Development and Maintenance activities. Such activities include without limitation development, installation, demonstration, Parameters Setting, User 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the nature of the contract is for supply of manpower. The consideration is paid on the basis of man-hours. It can also be seen that the work is executed as per the guidance of M/s. WTI. Thus, for carrying out the development, maintenance, etc., of software, the persons so deployed by the appellant to M/s. WTI are under the control of M/s. WTI and they work under the guidance and supervision of M/s. WTI. 27. The Tribunal relied upon the decision in the case of M/s. Future Focus Infotech India (P) Ltd. Vs CST Chennai - 2010 (18) STR 308 (Tri.-Chennai). It is submitted by the Ld. A.R that the appeal filed by the party before the Hon ble Apex Court against such decision has been dismissed as withdrawn. Following the decision of the Tribunal in the appellant s own case, we hold that the demand is legal and the same is sustained. 28. The third demand is under the category of Commercial Training or Coaching Services . The appellant has received income from NIIT for imparting computer coaching services. It is not denied that appellant is a franchise of M/s.NIIT for providing such classes. The classes provided may be theory classes or practical training classes. The category of C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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