Manpower supply classification in IT contracts results in service tax, cess and interest liability; penalty under section 76 upheld.

Classification of services turned on whether contracts obligated delivery of software projects or provision of skilled personnel; contractual clauses on deliverables do not convert a manpower supply into IT service because quality and replacement provisions indicate emphasis on number and replacement of personnel, not project delivery, and thus the activity is supply of manpower. Consequently, service tax, cess and interest demand were confirmed and penalty under section 76 was upheld; penalty under section 78 was set aside as mutually exclusive and unnecessary.

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Issues: (i) Whether the contracts in issue constitute 'Consulting engineer' services or 'Manpower recruitment or supply agency' services; (ii) Whether the demand of service tax, cess and interest is sustainable; (iii) Whether penalties imposed under section 76 and section 78 are justified.

Issue (i): Whether the contracts are for rendition of consulting engineer services or for supply of manpower.

Analysis: The contractual clauses were examined with emphasis on who bears responsibility for work, how deliverables are defined and enforced, substitution/continuity obligations, the staff-specific nature of task orders and invoices, and the operational reality of personnel working under the supervision and control of the recipient. The analysis applied tests of deliverables, responsibility, accountability, location, defect-liability and termination, and considered the effect of section 65A classification rules where rival entries exist.

Conclusion: The contracts constitute supply of skilled manpower (manpower recruitment or supply agency service) and not consulting engineer services.

Issue (ii): Whether the demand of service tax, cess and interest is sustainable.

Analysis: Given the classification as manpower supply, the taxable event is the rendering of that service; valuation follows gross value rules. Prior payments of service tax for similar supplies to other clients and the absence of facts showing subcontracted projects or independent execution by the contractor were taken into account.

Conclusion: The demand of service tax, cess and interest is confirmed.

Issue (iii): Whether penalties under section 76 and section 78 are justified.

Analysis: The imposition of penalty under section 76 was considered against the conduct and available information, and the mutual exclusivity of penalties under sections 76 and 78 was applied to the facts of the first appeal.

Conclusion: Penalty under section 76 is sustained; penalty under section 78 is set aside in the first appeal.

Final Conclusion: The appeals result in confirmation of service tax, cess and interest on the ground that the services supplied are manpower supply services; one appeal is partly allowed only to set aside the section 78 penalty, and the other appeal is rejected.

Ratio Decidendi: Where contracts are staff-specific, require replacement/substitution of personnel, and the supplied personnel perform work under the supervision and control of the recipient, the transaction is a manpower recruitment or supply agency service and not a consulting engineer service for the purposes of service tax classification.

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