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TMI Blog2023 (9) TMI 1065X X X X Extracts X X X X X X X X Extracts X X X X ..... ociety registered under Andhra Pradesh Co-operatives Societies Act 1964. Therefore, they are not required to pay any Service Tax for the Manpower Supply Services rendered by them. Learned AR submits that the Service Tax is required to be paid when the services are rendered by "any person" to "any person", even the Society falls under the category of person. There is no exclusion or exemption granted to societies who has to avoid payment of service tax. On going through the Order-in-Original, it is observed that the appellant has not attended the PH though several opportunities were given. The Appellant is continuing the same attitude even in respect of the present Appeal by not appearing in spite of Notices being served. 3. The Adjudicating Authority has given very detailed findings and has held that the Appellant's arguments cannot be legally sustained. The relevant paragraphs are reproduced below: 20. In the present case, the service provider is supplying manpower to their client i.e. M/s ONGC for monetary consideration during the subject period. As could be seen from the terms of the service agreement between the service provider and the receiver (M/s ONGC), as stated in para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was issued in pursuance of the Hon'ble AP High Court judgment in writ petition No. 28875 of 2009 dated 26.04.2010 wherein it was directed to pass an order of assessment. It is seen from the records that following the court direction, the department has asked the service provider to file the required details for assessing the liability vide jurisdictional divisional office letter dated 27.07.2010. But the service provider has failed to respond to the correspondence made and has not come forward to submit the particulars called for, that are required to assess the liability of the service provider. Following non co-operation of the service provider, the department has to follow up the matter with M/s ONGC to gather the details. Service Tax is an indirect tax where under the provisions of the Finance Act, 1994, - except in few specified cases, not applicable to the present case - the service providers as in the present issue are liable to pay service tax to the government on the services provided. So M/s CISCSL contention before the jurisdictional authorities that the notice be served on the service receivers i.e., M/s ONGC is not proper. 22. I find from the record that M/s ONGC C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ividuals for common ends i.e. especially, an organized group working together or periodically meeting because of common interests, beliefs, or profession and accordingly is an association of individuals. Section 3(42) of the General Clauses Act, 1897 defines that a "person" "shall include any company or association or body of individuals, whether incorporated or not". In the present case, the co-operative society being a registered body and a juristic person, it would be falling within the meaning of person for purpose of taxation as defined under the provisions chapter V of the Finance Act, 1994. The contention is that their being a co-operative society, they cannot be considered as a commercial concern and levied to service tax during the period 16.6.05 to 01.05.06 when only commercial concerns engaged in providing manpower supply services are liable to service tax. In this regard as already brought out above, Hon'ble High Court of Calcutta (cited supra) has observed that the commercial concern would include all concerns connected with commerce carrying on trade or profession or any kind of commercial activities. This aspect of commercial concern is discussed in detail by CESTAT, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of sports etc. it cannot be concluded that it is not a commercial concern. The Appellant - corporation is charging fully commercial price from its clients, - which includes besides the salaries of the security personnel, its commission to cover the administrative expenses and profit. It prepares annual profit and loss account and balance sheet. It is expected to generate resources to sustain itself and not fall into insolvency. It is free to deploy its funds in carrying out its functions which include marketing, processing, supply and storage of agricultural produce, small scale industry, building construction, transport and other business, trade or activity, as approved by the Government and it can invest the surplus funds generated in Government securities or in such other manner as it may decide. The Appellant - corporation, therefore, functions like a 'commercial concern'." 24. I find that, in fact the service provider is a society registered under the Andhra Pradesh Co-operative Societies Act, 1964. The society is providing the services to M/s ONGC on commercial basis at commercially agreed upon terms and conditions. However, in the present case there is nothing on record to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or invoking extended period have been brought out in the notice. Further, there is clear mention about the all taxes leviable for providing the service which are to be borne by the service provider only. I also find that M/s ONGC is ready to reimburse the taxes (as stated by M/s ONGC in the High Court order cited). The service provider has been engaged in the said service from 2005 onwards. Further, it is observed that the service provider was reluctant to furnish the information relating the payments received from M/s ONGC. The department has obtained the information from M/s ONGC only but not from the service provider, in respect of payments received for the services provided. This attitude of the service provider clearly shows the malafide intention to evade payment of service tax. Thus, issue of show cause notice invoking the extended period of five years under the proviso to Section 73 of the Finance Act, 1994 is justified. Since the service provider has suppressed the facts to evade payment of service tax, I find that the assessee is liable for penal action under the provisions of Section 76 and 78 of hte Finance Act, 1994. However, as I am proposing to impose penalty under S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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