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2019 (6) TMI 214 - AT - Service TaxClassification off services - Manpower Recruitment and Supply Agency Services or otherwise? - non-payment of Service Tax liability from 16/06/2005 i.e. the date on which the services became taxable to 28/02/2007 - penalty - HELD THAT:- Though the work assigned by the recipient of service is of handling of various goods in their factory premises. However, as per the rate chart, it is seen that though the rates are per metric tonne, but it is also on the basis of per person employed for such work. It can be seen that there is a heading ‘loading guarantee’ and ‘stacking guarantee’ which is on the basis of 4 mt, per person per gang, 6 mt per person per gang and 6.85 mt per person per gang respectively. This clearly shows that the payment is towards the supply of manpower for the various jobs as described in the above agreement. Moreover, the service recipient is making a separate payment towards the provident fund of the workers deputed by the service provider. It is evident from the debit note. From the debit note, it can be seen that the service recipient are obliged to pay a separate amount of provident fund to the appellant. If the contention of the appellant is considered, that the rate is as per tonne basis, but in such case, the recipient should not be responsible for any other payment except the actual rate given in the contract. However, from the above debit note, the appellant is receiving a separate amount towards the provident fund of the employees deputed by the appellant. In such a case, it is a clear case of supplies of manpower. Penalty u/s 76 and 78 of FA - HELD THAT:- Once the penalty under section 78 is imposed, no separate penalty under section 76 should be imposed - the penalty imposed under section 76 is set aside. Remaining portion of the order is upheld. Appeal allowed in part.
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