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2015 (8) TMI 545 - AT - Service TaxDenial of refund claim - Business Support Service or manpower recruitment service - Service tax paid mistakenly on an amount which was collected by them from their sister concern for deputing manpower - Held that:- appellant has deputed their own employees to their sister concern and based on accounting entries of recovery of cost of such employees, under mis-understanding of law paid the service tax liability under Business Support Service. The adjudicating authority as well as the first appellate authority have held that the service tax liability does not arise under Business Support Service and Revenue has not filed any appeal against such order. As regards the findings of the adjudicating authority that the service tax payable would be under the category of Management Consultancy Service, the same has been rejected by the first appellate authority. Be that as it may, we find that this Tribunal in the case of Sugar Daurala Sugar Works (2014 (6) TMI 274 - CESTAT NEW DELHI) Daurala Organics (2009 (3) TMI 99 - CESTAT NEW DELHI) have categorically held that deputation of employees to their own sister concern would not fall under the category of Management Consultancy Service. Classification was not sought to be made by the show-cause notice nor by the adjudicating authority, secondly, assessee could not have addressed himself the classification of the services, unless the first appellate authority has issued a show-cause notice to the appellant to that effect. From the records it transpires that the first appellate authority has not issued show-cause notice to the appellant for reclassification of the service to the Manpower Recruitment or Supply Agency Service. On this legal issue itself, the impugned order is liable to be set aside. - deputation of employees to their own sister concern and recovering cost from them, would not amount to rendering of Manpower Recruitment or Supply Agency Service. The said view has been upheld by the Hon’ble High Court as reported in [2014 (4) TMI 132 - GUJARAT HIGH COURT]. - service tax paid by the appellant is not liable to be taxed under any category of the services as has been sought to be done so by the lower authorities - Decided in favour of assessee.
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