2013 (11) TMI 298 - AT - Service Tax

Service Tax Not Applicable Under Section 65(105)(k) When No Manpower Supply or Recruitment Service Exists

CESTAT Mumbai held that service tax on reverse charge basis under section 65(105)(k) of the Finance Act, 1994, was not applicable as there was no supply ... Levy of Service Tax on reverse charge basis – Employees working in foreign holding Company - Whether Manpower recruitment or supply agency service u/s 65(105)(k) of the Finance Act, 1994 was provided by the appellant - Appellant contended that there is no supply of labour or manpower, and/or recruitment service provided by its holding company of the appellant - Merely because a part of the salary of global employee was paid in their home country through the holding/foreign company, it cannot be said that the foreign/holding company rendered supply of manpower or labour to the appellant. Held that:- The global employees working under the appellant are working as their employees and having employee-employer relationship - There is no supply of manpower service rendered to the appellant by the foreign/holding company - The method of disbursement of salary cannot determine the nature of transaction – Order set aside – Decided in favour of Assessee. Issues:Levy of Service Tax on reverse charge basis for employees assigned from foreign holding company, nature of employment relationship, applicability of 'supply of manpower' concept, validity of penalties imposed.Analysis:Issue 1: Levy of Service Tax on reverse charge basisThe appellant, a manufacturer of passenger vehicles, challenged the levy of Service Tax on reverse charge basis for certain employees assigned from its foreign holding company. The orders-in-original demanded substantial amounts for the period from May 2007 to December 2011.Issue 2: Nature of employment relationshipThe agreements between the appellant and its foreign holding company outlined the employment terms for global employees assigned to work in India. These employees were under the control, direction, and supervision of the appellant, working solely according to its policies. The agreements clarified that the foreign company had no obligation or control over the employees during their assignment.Issue 3: Applicability of 'supply of manpower' conceptThe Revenue treated the arrangement as 'supply of manpower' by the foreign holding company to the appellant, leading to the issuance of show-cause notices for Service Tax, interest, and penalties. The appellant contested these demands, arguing that there was no supply of labor or recruitment service by the holding company.Issue 4: Validity of penalties imposedThe appellant contended that the global employees were directly paid by the appellant, and any salary remitted abroad was reimbursed through the holding company without any additional payments. The Tribunal held that the global employees were working as employees of the appellant, and there was no supply of manpower service by the foreign company. Rulings cited by the appellant supported this position, leading to the setting aside of the Orders-in-Original and allowing the appeals with consequential relief.This detailed analysis of the judgment addresses the key issues involved in the case, including the nature of the employment relationship, the interpretation of the 'supply of manpower' concept, and the validity of penalties imposed by the Revenue. The Tribunal's decision provides clarity on the legal aspects surrounding the assignment of global employees and the applicability of Service Tax in such scenarios.