TMI Blog2020 (12) TMI 505X X X X Extracts X X X X X X X X Extracts X X X X ..... s been reiterated by the Chennai Bench of the Tribunal in the case of M/s Komatsu India Pvt. Ltd. Vs Commissioner of Service Tax, [ 2019 (9) TMI 1408 - CESTAT CHENNAI ] and Bangalore Bench of the Tribunal in the case of M/s Goldman Sachs Services Pvt. Ltd. Vs Commissioner of Service Tax, Bangalore[ 2020 (10) TMI 292 - CESTAT BANGALORE ]. Going by the above ratio decidendi of the Hon ble Apex Court, there are no merit in the demand raised by the revenue - the revenue is not disputing that the secondee is always under the control and supervision of the appellant and that the appellant s parent company had absolutely no obligation to pay the salary and other charges to the secondee but for remitting secondee s salary in foreign exchange ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strative convenience so that the salary of the secondee would be paid in foreign currency outside India by the parent company which would be reimbursed by the appellant to its parent entity. The short issue, therefore, arising for our consideration is whether the reimbursement of salary paid to the secondee , to the parent company, Nektar USA amounted consideration for provision of manpower recruitment and supply agency services, within the meaning of section 65(68) of the Finance Act, 1994. 2. Heard Shri Sandeep Chilana, learned advocate appearing for the appellant/assessee and Shri Bhanu Kiran, learned departmental representative appearing for the Commissioner/respondent. 3. The facts are not in dispute. We have perused the docum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mployer-employee relationship in such case exists between the agency and the individual and not between the individual and the person who uses the services of the individual Such cases are covered within the scope of the definition of the taxable service [section 65(105)(k) and, since they act as supply agency, they fall within the definition of manpower recruitment or supply agency [section 65 (68)] and are liable to service tax. Certain decisions/orders were referred, namely: (a) M/s Computer Sciences Corpn. India Pvt. Ltd. Vs Commr. of S.T., Noida [2014 (35) STR 94 (Tri-Del)] (b) M/s Bain Co. India Pvt. Ltd. Vs Commissioner of Service Tax, Delhi [2014 (35) STR 553 (Tri-Del)] (c) M/s Volkswagen India Pvt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... econdee s salary in foreign exchange based on the salary reimbursement agreement. In fact, the Chennai Bench of the Tribunal, in the case of Komatsu India Pvt. Ltd. (supra) has very clearly held as follows: 5. Section 65 (68) of the Finance Act, 1994 defines the taxable service under the category of Man Power Recruitment or Supply Agency to mean any person engaged in providing any service for recruitment or supply of man power. Further, taxable service‟ has been defined under Section 65 (104) (k) ibid to mean any service provided to any person by a man power recruitment or supply agency for recruitment or supply of man power to any other person. On close reading of the said statutory provisions, it transpires that the role of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not create the tax liability under such category of taxable service. It is not the case of Revenue that over and above the amount paid to the employees or their families, any other additional amounts were charged by the overseas entities or paid by the appellant towards such deployment of the employees. Thus, under such circumstances, it cannot be said that the overseas group companies have provided the service of recruitment or supply of man power and the appellant should be liable to pay service tax as a recipient of such service under the reverse charge mechanism. We find that this Tribunal in the case of Nissin Brake India Pvt. Ltd. (supra) has held that deputed employees working under control, direction and supervision of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
