2008 (5) TMI 162 - AT - Service Tax

Appellant's Tax Classification Appeal: Penalties Imposed, Pre-Deposit Directive, and Compliance Conditions

The appellant was classified as a 'Manpower Recruitment Agency' instead of a 'Manpower Supply Agent' based on the agreement with clients and the nature of ... Supplying manpower to various clients – appellant contend that they are covered under ‘Manpower Supply Agent’ - revenue submits that terms of the agreement clearly disclose that the clients have rights on the services of the employee – revenue contention that appellant does not have a relationship of principal to principal as claimed, is acceptable – at prima facie stage, appellants are covered under the category of ‘Manpower Recruitment Agency’ – stay partly granted Issues:1. Classification of the appellant as a 'Manpower Recruitment Agency' or 'Manpower Supply Agent'.2. Liability to pay Service Tax under different categories.3. Imposition of penalties under Section 77 and Section 76.Classification Issue:The appellant denied being a 'Manpower Recruitment Agency' and claimed to be a 'Manpower Supply Agent.' The authorities examined the agreement between the appellant and clients, concluding that the appellant falls under the category of 'Manpower Recruitment Agency.' The Commissioner rejected the appellant's plea of being a labor contractor based on various findings, including the probation period for employees. The definition of 'recruit' from the Concise Oxford Dictionary was also considered. The employees were found not to be casual laborers but regular employees, justifying the demands raised.Liability to Pay Service Tax:The appellant was required to pre-deposit Service Tax amounts under 'Manpower Recruitment Agency' and 'Consulting Engineer Service,' along with penalties under Section 77 and Section 76. The appellant argued that the relationship between the clients and employees was on a principal-to-principal basis, not as employer-employee. They also claimed that the demands were time-barred and cited financial hardship. The Revenue contended that the terms of the agreement showed the clients had rights over the services of the employees, who were ultimately recruited by the clients.Penalties Imposed:Penalties of Rs. 1000 under Section 77 and Rs. 100 per day under Section 76 were imposed on the appellant. The Tribunal directed the appellant to pre-deposit a specific sum within a set period, with the balance of duty and penalty waived upon compliance. Failure to comply would result in dismissal of the appeal. Compliance would lead to the balance amount being waived, and recovery stayed even after 180 days. The judgment emphasized the importance of pre-depositing the specified amount to avoid dismissal of the appeal.