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TMI Blog2019 (6) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... r the category of Manpower Recruitment or Supply Agency Services. Also the appellant did not discharge the Service Tax liability on the provident fund paid directly by M/s GHCL Ltd for the period from June, 2005 to December 2008. Accordingly, a Show Cause Notice was issued proposing demand of Service Tax under 'Manpower Recruitment service' which was culminated into adjudication order whereby demand of Service Tax amounting to Rs. 42,62,018/- and Rs. 7,58,894/- were confirmed along with demand of interest, penalty under section 76 and also imposed penalty under section 78. Being aggrieved by the Order in Original, the appellant filed the present appeal. 2. Ms. Priyanka Kalwani, Ld. Counsel appearing on behalf of the appellant submits that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. He invited our attention to various clauses of the agreement and also the rate list wherein he pointed out that the services charges are based on quantity as well as number of persons. Therefore, the consideration is also on the basis of manpower. He further submits that the provident fund is also paid separately by the service recipient, which establishes that the appellants are providing manpower recruitment agency service. 4. We have carefully considered the submissions of both sides and perused the records. We find that to decide whether the service fall under manpower recruitment agency services or otherwise, it is necessary to go through the contract of the appellant with the service recipient M/s GHSL which is reproduced below: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct that the payment is on the basis of employees and payment of provident fund is made by the service recipient. Therefore, the facts of those cases are different from the facts of the present case and hence, all the judgments have been distinguished. As per our above discussion, we are of the view, as per the contract, the services provided by the appellant is of 'Manpower Recruitment Agency and Supply Services'. Accordingly, it is taxable. As regard the penalty imposed under section 76 & 78, we find that the Hon'ble High Court of Gujarat in the case of Raval Trading Company 2016 (42) S.T.R. 210 (Guj.) held that once the penalty under section 78 is imposed, no separate penalty under section 76 should be imposed. Accordingly, the penalty im ..... X X X X Extracts X X X X X X X X Extracts X X X X
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