2023 (5) TMI 1334 - AT - Service Tax

Manpower Recruitment or Supply Agency Service - Seeking amendment in the cause title as well as in the ST-5 Form annexed to the appeal memorandum - Refund of unutilized Cenvat credit - HELD THAT - We find that the impugned order in this case has failed to appreciate that the staff selected for employment were the employees of the foreign service recipient and not the employees of the appellant. Further the agreements entered into between the appellant and the overseas entity were not properly scrutinized by the Ld. Commissioner (Appeals) which is evident from the fact that the appellant does not have necessary certificate to carry on the business of Ship Management Services. Hence in our considered view the services provided by the appellant pursuant to the agreements would appropriately be classifiable under Manpower Recruitment or Supply Service for which the appellant got themselves registered with the service tax department. We find that considering an identical issue the Tribunal in the case of Commissioner of Central Excise Mumbai Vs. Jubilant Enpro Pvt. Ltd. 2013 (3) TMI 735 - CESTAT MUMBAI has held that the correct classification of services provided by the appellant therein should fall under the taxable category of Manpower Recruitment or Supply Service and not under Ship Management Service . Thus we conclude that during the disputed period the appellant had provided Manpower Recruitment or Supply Service to the overseas entity and that as per the terms of the agreement since the recipient of service was located outside India the service should be considered as export; and as a consequence the appellant should be entitled for the benefit of refund of input tax credit availed by it. Therefore by setting aside the impugned order the appeal is allowed in favour of the appellant.

Summary

Issues Involved:
Amendment in cause title and ST-5 Form
Refund of unutilized Cenvat credit

Amendment in Cause Title and ST-5 Form:
The applicant sought amendment in the cause title and ST-5 Form due to a change in the company name. The Tribunal allowed the amendments to reflect the correct name and address of the appellant and respondent, considering the facts and circumstances of the case.

Refund of Unutilized Cenvat Credit:
The appellant had entered into agreements for providing services which were exported, leading to unutilized Cenvat credit. The refund application was partially granted by the Assistant Commissioner but rejected for a portion. The Tribunal found that the services provided by the appellant should be classified as 'Manpower Recruitment or Supply Service' based on the agreements and the nature of services rendered. As the services were considered exported, the appellant was entitled to the benefit of refund of input tax credit. The Tribunal disagreed with the impugned order and allowed the appeal in favor of the appellant.

Separate Judgment:
The Tribunal pronounced the order in favor of the appellant on 11.05.2023.