TaxTMI 
TaxTMI 
2023 (11) TMI 1425
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....e referred to larger bench or in view of para 4.17 of the order proposed by the Member (Technical) appeal needs to be dismissed. 2. Heard both the parties and perused the respective opinions recoded by both the Learned Members. 3. Shri Lakshmikumaran, Ld. Senior Counsel appearing for the appellant submitted that the view taken by the Member (Judicial) to refer the matter to the Larger Bench is correct and legal because the Member (Technical) has not distinguished the facts in the case in hand from the facts of India Yamaha Motor Private Limited and M/s Mikuni India Pvt. Ltd. cited by the Member (Judicial) in his opinion. He further submitted that the decisions in the case of India Yamaha Motor Private Limited and M/s Mikuni India Pvt. Ltd. are appropriately applicable in the facts of the present case. He also submits that the factual and the legal background in which the Tribunal decided the matters in the above two cases are identical to the facts of the present case. He further submits that the Member (Technical) has not considered the said decisions and has given his independent findings which is not sustainable in law in view of the various decisions relied upon by the ap....
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....bay v. Indian Scientific Glass & Others 1991 (52) E.L.T. 405 (Tribunal) • Collector of Customs v. Hindustan Photo Film Ltd 1991 (52) E.L.T. 301 (Tribunal). • Reliance Industries Ltd. vs. Commissioner of C. Ex. & Cus., Rajkot 2009 (244) E.L.T. 254 (Tri. - Ahmd.) • Tata Iron & Steel Company Limited vs. Commr. of Cus., Calcutta 2000 (126) E.L.T. 1204 (Tribunal) (CEGAT-Del.) • Colourtex vs. Union of India 2006 (198) E.L.T. 169 (Guj.) • Indian Metals & Ferro Alloys Ltd. vs. Collector of Customs 1991 (55) E.L.T. 59 (Tribunal) (CEGAT-Del.) • Jan Mohammed, Nainital vs. The Commr. of Income-Tax 1952 SCC Online All 206: AIR 1953 All 119 4. On the other hand, the Ld. DR Shri Rajeev Gupta assisted by Shri Nikhil Kumar Singh and Shri Narinder Singh vehemently supported the view expressed by Member (Technical) and submitted that it is wrong to say that Member (Technical) has not considered the decision in the case of India Yamaha Motor Pvt. Ltd; rather Member (Technical) has considered the said decision and distinguished the same after considering the definition of Manpower Supplies Service prior to 01.07.2012 as pr....
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....ons in the case of Volkswagon India Pvt. Ltd. and Computer Sciences Corporation India Pvt. Ltd. cited (supra) loses its precedential value and hence no relevance exists for difference of opinion. 4.5 Ld. DR also submits that on merit this issue has now been settled by the Hon'ble Apex Court in the decision cited (supra) wherein it has been held that the assessee was a service recipient for the taxable service by the overseas entity, with regard to the employees it seconded to the assessee, for the duration of their deputation or secondment and the assessee is liable to pay service tax on reverse charge mechanism as provided under Section 66(A) of the Finance Act, 1994. Ld. DR then referred to the relevant paras from the judgement of the Hon'ble Apex Court where the Hon'ble Apex Court after considering the facts of the case including the various agreements between the parties and the definition of Manpower Recruitment Service prior to and after amendment w.e.f. 01.07.2012 has categorically held that the assessee is liable to pay service tax on Manpower Supplies Service on reverse charge mechanism. 4.6 Ld. DR also submits that the Member (Technical) has considered the relevant ....
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.....07.2012 which is reproduced herein below:- Provisions Prior to 1.7.2012 In this Chapter, unless "65. the context otherwise requires,- (105) "taxable service" means any service provided (or to be provided], [(k) [to any person], by a manpower recruitment or supply agency in relation to the recruitment or supply of manpower, temporarily or otherwise, in any manner.]" PROVISIONS POST 1.7.2012: "65B. In this Chapter, unless the context otherwise requires, - (44) "service" means any activity carried out by a person for another for consideration, and includes a declared service, but shall not include - (b) a provision of service by an employee to the employer in the course of or in relation to his employment; 6. Further, I find that Member (Technical) has considered the definition of Manpower Supply Agency before and after the amendment in details as recorded in his opinion and I also find that Member (Technical) in Para 4.17 has also considered the decision in the case of M/s India Yamaha Motor Private Limited and held that the same is not applicable to the present case. It is pertinent to reproduce the....