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2018 (11) TMI 27 - AT - Service TaxClassification of services - providing services to ICICI Bank - Whether classified as Business Auxiliary Service or under the head Manpower services? - Held that:- The contract entered with the appellant by ICICI Bank was for identifying eligible consumers for the retail products of ICICI including credit gross commercial/ product gross/ emergence and other retail finance products. The appellant was also required to provide certain services related to issuance of credit across as described in the said contract - It is apparent that the contract entered into by the appellant in the year 2009 was not a contract for supplying the manpower services but was a contract for promotion of the services provided to the service recipient - The argument of the appellant that no conclusion regarding nature of services provided can be reached on the basis of scope of the agreement of 2009 is misplaced. A perusal of the agreement of 2009, clearly indicates that it is a continuation of earlier arrangement. Valuation - includibility - rent - cost of manpower - whether reimbursable expenses or cost of service? - Held that:- A free supply changes the nature of contract. For example a contract for ‘painting of building’ would became ‘a labour contract’ if paint and painting equipment is supplied free. However, a painting contract will remain a painting contract even if the agreement has clause where actual cost of paint and equipment is reimbursed - the appellants are not entitled to exclude the rent and salaries from the assessable value. The demand on this count in respect of services provided to ICICI is upheld on merit. Contract entered into by the appellant with Tata Teleservices Ltd. - Held that:- The service provided is in the nature of supply of manpower. In these circumstances the demand of service tax under the head of BAS cannot survive. Time Limitation - Held that:- The service provided is in the nature of supply of manpower. In these circumstances the demand of service tax under the head of BAS cannot survive - The ST-3 form prescribes disclosure of all amounts received in respect of service even if not part of Assessable value. Failure to disclose the same amounts to misdeclaration. Thus, the appellant’s argument on limitation is dismissed. Simultaneous penalty under section 76 & 78 - Held that:- The penalty under section 76 is set aside. Penalty under section 78 is revised to the amount of revised demand of duty. Appeal allowed in part.
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