TMI Blog2019 (8) TMI 260X X X X Extracts X X X X X X X X Extracts X X X X ..... d do not sustain - appeal allowed - decided in favor of appellant. - Service Tax Appeal No. 52871, 54396 of 2015 - Final Order Nos. 50964 – 50965/2019 - Dated:- 23-7-2019 - MR. JUSTICE DILIP GUPTA, PRESIDENT And MR. BIJAY KUMAR, MEMBER (TECHNICAL) Shri B. L. Narasimhan And Shri Anurag Kapur, Advocates for the appellant Shri Vivek Pandey, Authorised Representative for the respondent ORDER Justice Dilip Gupta Service Tax Appeal No. 52871 of 2015 has been filed to assail the order dated 08 May, 2015 passed by the Commissioner of Central Excise, Alwar by which the service tax demand has been confirmed and penalty has also been im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant; and (c) Compensation and benefits paid to the personnel were to be borne by the Appellant. Any amount paid to the Japanese personnel by MCI on behalf of the Appellant was to be reimbursed by the Appellant. 5. During the audit, the officers of the Department observed that MCI had deputed its employees to the appellant for providing services in its factory premises at Neemrana as per the CRA. Two show cause notices dated 09 May, 2014 and 24 March, 2015 were, therefore issued to the appellant covering the two periods of dispute mentioned above. The show cause notices proposed demand of service tax under Manpower Supply Services under a reverse charge mechanism with interest and penalty. The appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act excluded provision of service by an employee to the employer in the course of or in relation to his employment. Section 65B (44) of the Act is reproduced below: 65B (44) Service means any activity carried out by a person for another for consideration, and includes a declared service, but shall not include- ...... ........ ....... ...... ........ ....... (b) a provision of service by an employee to the employer in the course of or in relation to his employment; 8. Shri B. L. Narasimhan, learned Counsel appearing for the appellant submitted that for the period prior to 1 July, 2012, the deputation/ secondment of employees is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aced reliance on a recent judgment of this Tribunal in M/s India Yamaha Motor Private Limited vs. Commissioner of Central Excise Service Tax, New Delhi Service Tax Appeal No. 53046 of 2016 decided on 28 June, 2019. 9. Learned Authorised Representative of the Department does not dispute that the issue involved in this appeal is covered by the decision of the Tribunal in M/s India Yamaha Motor Private Limited. 10. The Division Bench in M/s India Yamaha Motor Private Limited examined the issue both for the period prior to 1 July, 2012 and for the post negative list for the period subsequent to 1 July, 2012. In regard to the demand relating to the period from 1 April, 2012 to 1 July, 2012 (pre negative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) a provision of service by an employee to the employer in the course of or in relation to his employment. The definition makes it clear that when the arrangement is that of relationship of employer and employee that the same is expressly excluded from the ambit of taxability. 8. Above all the issue is no more res integra enable High Court of Allahabad in the case of CCE Vs. Computer Sciences Corporation India Pvt. Ltd. - 2015 (37) STR 62 (All.), has dealt as follows. 8. In the present case, the Commissioner clearly missed the requirement that the service which is provided or to be provided, must be by a manpower recruitment or supply agency. Moreover, such a service has to be in rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relying upon the case of Volkswagen India Pvt. Ltd. Vs. CCE, Pune-I - 2014 (34) STR 135 (Tri.-Mumbai) and the above discussed case law has held that the expatriates working under the appellant are the employees of the appellant as there is an employer-employee relationship. As such, there is no supply of manpower service which is rendered to the appellant by the foreign/ holding company. 12. It is not in dispute that the issue involved in these two appeals is similar to the issues involved in the appeal that came up for decision before the Division Bench of the Tribunal in M/s India Yamaha Motor Private Limited . The relevant paragraphs of the judgment have been reproduced above. The Division Bench held that neither dur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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