TaxTMI 
TaxTMI 
2024 (12) TMI 674
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....eposit Rs. 1,46,39,167/- (including interest of Rs. 40,91,313/-) as tax up to Nov 2010 under the categories of 'Manpower Recruitment and supply agency services' taxable under Section 65 (68) & 65 (105) (k) and 'Business Support Services' as per section 65(104c) & 65(105) (zzzq) of the Finance Act, 1994. The appellant deposited the said amount of Rs. 2,49,16,169/- (including interest of Rs. 39,85,151/-) up to 10.04.2012 on 18.04.2012. Thereafter, as realised by the appellant that the activity carried on by them was not taxable, the appellant filed a refund claim for the said amount. Following which, a Show Cause Notice dated 03.09.2012 was issued to the appellant proposing to reject the refund claim. Vide the order dated 09.01.2015, the adjudicating authority rejected the refund claim of the appellant. Being aggrieved, the appellant filed an appeal before the Ld. Commissioner (Appeals) which was dismissed. Hence, the present appeal is filed before this Tribunal. 3. Learned Counsel for the appellant submitted that as per the definition of "Manpower recruitment or supply agency services", it is clearly mentioned that the service provider should be engaged in providing....
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....to the appellant. Therefore, it cannot be contended on the part of the department that the appellant has no 'locus standi' to seek refund claim. Further, the learned counsel submitted that the appellant being a Public Sector Undertaking, the bar of 'Unjust enrichment' does not apply to the appellant. The appellant enclosed a 'Affidavit' with the Appeal, stating that as soon as the amount of refund is sanctioned to the appellant, the same would be transferred to M/s PFC Consulting Limited (hereinafter referred to PFCCL). Thus, it cannot be said that the appellant does not have the 'Locus Standi." In support of his submission, the learned counsel has relied upon the following decisions:- * Goodyear South Asia Tyers Pvt. Ltd. Vs. Commissioner of Central Excise, Nagpur [2011 (4) TMI 488-CESAT, Mumbai] * General Manager, Govt. Milk Scheme Vs. Commissioner Of C. Ex., Narpur [2010 (19) S.T.R. 798] * Khanna Constructions Vs. Commissioner Of Customs, CGST & C. Ex., Jodhpur [2020 (33) G.S.T.L. 111 (Tri. - Del.)] * Commissioner Of Customs, Mangalore Vs. Hindustan Organic Chemicals Ltd. [2021 (377) E.L.T. 605 (Kar.)] * Commissioner of C. Ex., Chennai - I V....
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.... that at the time of filing of refund application dated 18.04.2012, the appellant had submitted the grounds for claiming refund as "the amount with interest deposited was not a tax and was deposited for the sake of peace of mind under departmental pressure as a matter of compliance". In this context, he submitted that, on being pointed out by the Audit party to pay the service tax upto November, 2010, the appellant had voluntarily deposited the service tax along with interest upto March-2011 without any protest and informed the same to the department vide their letter dated 08.07.2021. Once service tax liability has been accepted and voluntarily paid with interest, the appellant cannot turn around and challenge the same. In support of his submission, the learned AR relied upon the decision of the Hon'ble High Court Of Delhi in case of M/s. Vijay Steelcon Pvt. Ltd. Versus Principal Commr. of C.T. (GST), Delhi East [W.P. (C) No. 13034 of 2021, decided on 18-11-2021]. 4.1. Learned Authorized Representative further submitted that the appellant had filed appeal before Commissioner (Appeals) for refund of interest, however, they have already passed on the incidence of such tax and inter....
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....ed. The relevant paragraphs of the Apex Court's judgement are reproduced hereinafter: "30. Before the amendment of the Finance Act, its provisions, to the extent they are relevant are extracted hereunder. The definition of 'manpower recruitment or supply agency' and 'taxable service' under the definition clause is extracted below: "Definitions. 65. In this Chapter, unless the context otherwise requires, (1) "actuary" has the meaning assigned to it in clause (1) of section 2 of the Insurance Act, 1938 (4 of 1938); who renders any advice, consultancy or technical assistance, in relation to financial management, human resources management, marketing management, production management, logistics management, procurement and management of information technology resources or other similar areas of management) Xxxxxxxx xxxxxxx xxxxxxxx Substituted by the Finance Act, 2005, w.e.f. 16.06.2005. (68) "manpower recruitment or supply agency means any [person) engaged in providing any service, directly or indirectly, in any manner for recruitment or supply of manpower, temporarily or otherwise, "[to any other person);] Xxxxxxx xxxxxx xxxxxxx (105) "taxable service" means any service ....
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....company assigns, inter alia, certain tasks to the assessee, including back-office operations of certain kind, in relation to activities, or that group companies or entities. (ii) The assessee is paid a mark-up of 15% of the overall expenditure it incurs, by the overseas company (clause 2, read with attachment 1 of the Service Agreement); (iii) By the Secondment Agreement, the parties agree that the overseas employees is loaned to the assessee (clause 2 read with attachment 1 of the Service Agreement. (iv) During the period of secondment, the assessee has control over the employee, i.e., it can require the seconded employee to return and likewise, the employee has the discretion to terminate the relationship (Article II); (v) The overseas employer (group company) pays the seconded employee, which is reimbursed to the overseas company, by the assessee (Article III); 50. The above features show that the assessee had operational or functional control over the seconded employees; it was potentially liable for the performance of the tasks assigned to them. That it paid (through reimbursement) the amounts equivalent to the salaries of the seconded employees because of the obliga....
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....ative test, but that what is applicable is "a conglomerate of all applicable tests taken on the totality of the fact situation in a given case that would ultimately yield, particularly in a complex hybrid situation, whether the contract to be construed is a contract of service or a contract for service. Depending on the fact situation of each case, all the aforesaid factors would not necessarily be relevant, or, if relevant, be given the same weight." 57. Taking a cue from the above observations, while the control (over performance of the seconded employees' work) and the right to ask them to return, if their functioning is not as is desired, is with the assessee, the fact remains that their overseas employer in relation to its business deploys them to the assessee, on secondment. Secondly, the overseas employer- for whatever reason, pays them their salaries. Their terms of employment-even during the secondment are in accord with the policy of the overseas company, who is their employer. Upon the end of the period of secondment, they return to their original places, to await deployment or extension of secondment. 58. One of the arguments of the assessee was that arguendo, t....