TMI Blog2019 (5) TMI 1102X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellants also received performance production incentives for the services rendered. Even though the appellants may be mentioning the nature of services rendered by them to the service recipients, however it is an accepted fact that the charges for the services were recovered by them on the basis of number of persons or hours worked for rendering the services. In such case, the services rendered by the appellants would fall under the category of Manpower Recruitment or Supply Agency services for the impugned period which is liable for service tax. Extended period of Limitation - Penalty - suppression of facts or not - HELD THAT:- There is no charge of deliberate non-payment of service tax due to suppression of facts or malafide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same are taken together for disposal. 2. The brief facts of the case are that the Appellants during the period 1.4.2004 to 31.3.2009 were engaged in deputing labour force for activities of packing, loading, un-loading, bagging, handling to their clients. M/s Alisha Enterprises were issued show cause notice dated 30.6.2010 covering period 16.6.2005 to 31.3.2009 and M/s Shaikh Labour Services were issued show cause notice dated 24.4.2009 for the period 1.4.2004 to 30.11.2008 alleging that they were engaged in supply of Man Power Service and hence liable to pay service tax on the consideration received by them under the category of Man Power Recruitment and Supply Services . On scrutiny of accounts and other documents, the li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vided Man Power Recruitment Agency Service. They also contended that they were not aware of the service tax liability on services provided by them and hence did not collect any amount of service tax from the customers. If the same would have been collected from the customers, it would have been available to their customers as credit and would have been available for paying duty on the finished goods. Thus, the whole issue is revenue neutral. They also contested the demands on time bar. 4. Adjudicating authority in case of M/s Shaikh Labour Services vide Order-in-Original No. 16/DEM/ADJ/ST/SSNP-Addl./2009 dated 30.10.2009 confirmed the demand of service-tax by invoking extended period of limitation and also ordered for recove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... STR 645 (Commir.Appl), Gyarasi Lal Co. Vs. CCE (2009 (15) STR 81 (Tri, Del), Ritesh Enterprises C CCE (2020 (18) STR 17 (Tri, Bang), K.K.Appachan Vs (2007 (7) STR 230 (Tri, Bang), K. damodarareddy vs CCE (2010 (19) STR 593 (Tri, Bang.). 6. He submits that since the issue involved is interpretation, the extended period cannot be invoked. He submits that their clients were manufacturers of excisable goods and even if the service tax was charged, they would have got the cenvat credit for the same and there is no loss of revenue when service tax is not charged or recovered based on bona fide belief. He relied upon the judgments incase of MBA Co. final Order No. A/30825-30826/2018 dated 3.8.2018 in Appeal No. ST 316 349/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . He also submits that since service tax was not paid from the very beginning, extended period of limitation for making demand is invocable. 8. Heard both the sides and perused the records. We find that the appellants were engaged in the supply of labour to various pharmaceutical companies and were raising bills by mentioning various activities undertaken like packing, loading, un-loading, bagging, handling etc. However it is a fact that the charges of services were determined based on the number of persons or hours worked for rendering services and charging service charges. The appellants also received performance production incentives for the services rendered. We find that even though the appellants may be mentioning the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ors that they did not take service tax registration being unaware of the service tax liability and were under the bona fide belief that their services are of packing, loading, unloading and other activities, which do not fall under the category of Manpower Recruitment and Supply Agency Service. We also find that the appellants are not much educated and have started their activities as ordinary workers. 10. The adjudicating authority has not pointed out any deliberate evasion of service tax and mere non-applying for registration or nonpayment of service tax cannot be considered as deliberate evasion. Also In case of Addis Marketing - 2017 (50) STR 56 (Tri), the Tribunal has held that in case of non payment of service tax on a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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