HARITA TVS TECHNOLOGIES LTD. Vs. COMMISSIONER OF SERVICE TAX
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
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B.S.V.Murthy, Member (T) -
(1.)AFTER hearing both sides for some time on the stay petition, we find that the appeal itself can be disposed of. Accordingly after waiving the condition of pre -deposit, we take up the appeal for final disposal.
(2.)THE demand for service tax of more than Rs. 31 lakhs with interest has been confirmed for the period 2004 -05 to 2006 -07 on the ground that the appellant has rendered consulting engineers service to the customers and have not paid the tax. Penalty also has been imposed.
Heard both sides. Learned counsel submits that appellant has no doubt rendered consulting engineers service and they had also rendered temporary manpower supply service. She submits that to some of the customers, they have provided technically qualified engineers on a temporary basis and on these amounts they have not paid service tax whereas they were paying service tax regularly on consulting engineers service provided by them to their customers. She submits that even though appellant had made the submissions before the lower authorities that the services provided were only of manpower supply, yet the submissions were not considered and orders have been passed. She also submits that the entire demand is time barred since the audit for the period had been completed in 2007 and show -cause notice was issued in 2009.
(3.)AFTER going through one of the master general agreements entered into between the appellant and M/s. Sundaram -Clayton Ltd., we found that in Clause 3 relating to payments, two types of schedules envisaged in the master agreement. In respect of support cover under Schedule A to the agreement, payment was to be based on the number of persons deployed by HISL (appellant) and accepted by the appellant and it was to be computed based on the agreed rates for the level of persons provided. As regards the support cover under Schedule B of the agreement, it was considered as activity based support service and the payment was to be made on the basis of service activities provided. She submits that as regards the activities in Schedule B, the appellants have paid the service tax under consulting engineers service and it is the appellants claim that for the activities in Schedule A, the appellant need not pay the tax for the period prior to 16/06/2005. She submits that even for the period subsequent to 16/06/2005, the appellant has paid the tax but under consulting engineers service only and there was an omission in classifying the service and paying it accordingly. She also submits that as regards manpower service, the appellant simply supplied the manpower as per the requirement and assessment of work, supervision of work and monitoring of the supplied manpower were done by the customers.
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