TMI Blog2021 (7) TMI 1000X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant is not liable to pay any service tax as confirmed vide the impugned order. In the case of M/S VOLKSWAGEN INDIA PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE [ 2013 (11) TMI 298 - CESTAT MUMBAI] where it was held that The global employees working under the appellant are working as their employees and having employee-employer relationship. There is no supply of manpower service rendered to the appellant by the foreign/holding company. The method of disbursement of salary cannot determine the nature of transaction. The appeal is allowed. - Order-in-Appeal No. 202(SM)/ST/JPR/2021 - - - Dated:- 9-6-2021 - SUGRIVE MEENA, COMMISSIONER (APPEALS), CENTRAL EXCISE AND CENTRAL GOODS SERVICES TAX, JAIPUR ORDER This appeal has been filed under Section 85 of the Finance Act, 1994 (hereinafter also referred to as the Act ), by M/s Imasen Manufacturing India Private Limited, 5P-2-18 19, New Industrial Complex, Japanese Zone, Majrakath, Neemrana, bistt- Alwar(Raj.) (hereinafter also referred to as the appellant ) against Order-in-Original No. 03/2020-21 (Service Tax) dated 12.06.2020(hereinafter referred to as the impugned order also), passed by the Assistant C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... N, on which Service Tax is demanded, were paid directly to the referred employees and no amount out of abovementioned amount of salaries paid, have been paid neither to Imasen, Japan nor to Imasen, India nor to any entrepreneurs or Directors or Members of the group and so demand of Service Tax raised on salaries paid to the employees is against the Constitution of India and Service Tax Laws both. (3) The subjected issue for which the appellants have recently been show caused for the period from 1St April, 2015 to 30th June, 2017, has already been settled for earlier periods from 01.09.2008 to 31st March. 2015 vide Orders-in-Appeal Nos. 317(SM) ST/JPR/2017 dated 06.09.2017 338-339(5M) ST/JPR/2017 dated 25.09.2017 and one copy each of both the Orders-in-Appeal are attached herewith as Annexure Nos. F T for your instant reference with a request to kindly drop all proceedings initiated by recent SCN Show C. No. V(94)41/Dem/Imasen-MFG/Behror/16/393 dated 22.03.2018 and the impugned Order-in-Original may kindly be set aside on this ground alone without discussing further into this matter. (4) That the Adjudication Authority has grossly erred in holding that as per Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvoice, a bill or challan signed by such person containing particulars viz. (i) The name, address and the Registration Number of such person (ii) Name and address of the person receiving the taxable service (iii) description, classification and value of taxable service and (iv) service tax payable thereon. In appellants case no monetary consideration is involved. The IEIC, Japan had not issued any invoice to IMIPL, Neemrana, India and IMIPL (India) had not paid any amount to the IEIC (Japan) in connection with deployment of the staff on deputation to the group of company concern in India. Unless any payment towards value of taxable service to the IEIC (Japan) by the appellants company is proved, liability of payment of service tax under Section 66A of the Finance Act, 1994 does not arise. a. That the Adjudicating Authority has further erred in, holding that as per CBEC Circular No. 86/7/2007-ST dated 23.08.2007, there is no ambiguity in treating IEIC (Japan) a Service Provider of Manpower Recruitment or Supply Agency Service from abroad to IMI in India as per contractual relationship between IEIC and IMI in India. The appellants submit that in the above Circular, it has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government Sector. d. That without prejudice to the above submissions and assuming without admitting if the demand is confirmed, the appellants submit that with effect from -1.07.2012, Section 66A of the Finance Act, 1994 has been made ineffective and the Notification No. 11/2006-ST dated 19.04.2006. Taxation of Service (Provided from outside India are received in India) Rules, 2006 rescinded w.e.f. 01.07.2012, the taxability of services rendered by the persons located outside table territory and received by person in taxable territory is to be decided as per the Place of Provisions of Rules, 2012. Notification No. 30/2012-ST dated 20.06.2012 as amended notifies taxable services and the extent of service tax payable thereon as under e. It is inferred that if the Manpower Supply Service is provided by other than individual, HUF or Business Firm i.e.. Company or Body Corporate, the Service Tax, will be payable by the Service Provider i.e. by the IEIC (Home Company and not by the Recipient of Service. The reverse charge is applicable for service under Manpower Supply Service when the Service is provided by Individual, HUF, Proprietary Firm and Service Recipient is Business E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harged by IEIC from IMI. (8) TDS is being deducted in India by IMI and deposited with the Income Tax Department on full salary whatever is being paid to these employees, the employees those have been transferred from their Japan Company to Indian Company are being paid salaries only and no part of their salaries have been paid to IEIC neither by IMI nor by these transferred employees. Further stated that mentioned four employees of the Company, those have been transferred to India from Japan, are being paid their salaries partly in India and rest in Japan in Yen. But, Income Tax is being paid in India on their total salaries paid. In this regard their Form No. 16 with complete details of payments made to them, was also attached herewith separately for all four mentioned employees. The Assessee further stated that on going through Forms 16, you will find that submission made through point No. 7, confirms and so no Service Tax attracts on the salaries paid to them. (9) Further, assessee has attached therewith Annual Return filed in Schedule V Part-II under The Companies Act, 1956 and stated that on going through the same you will find that Company has issued total 633400 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s arises only when facts which are required to be disclosed according to the provisions of the statue, are not disclosed or there in deliberate withholding of information by them. There is no such lapse on the part of the appellants. When there was no statutory requirement to provide the information, the charge of suppression does not arise as held by Hon ble Tribunal, Ahmedabad in the case of M/S. GSPL Vs. CCE 8-2013 (32) STR-510 (Tri. Ahmed.). Hon ble Supreme Court in many decisions has held that mere non-disclosure is not sufficient to invoke larger period unless it was done wilfully with intent to evade payment of duty. Reliance is placed on the following decisions :- (a) Cosmic Dye Chemicals Vs. CCE, Bombay [1995 (75) ELT-721-SC] (b) CCE Vs. Champhar Drugs Linements [1989 (40) ELT-276-SC] (c) CCE Vs. HMM Ltd. [1995(76) ELT-497-SC] (d) CCE Vs. Karnataka Agro Chemical [2008 (227) ELT-12-SC] In view of the above submissions, there was no suppression of facts by the appellants and therefore, the demand beyond 18 months is time-barred. (12) That with regard to imposition of penalties under Section 78, 77(1)(a) and 77(2) of Finance Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le CESTAT has held that :- Manpower recruitment and supply agency Demand under Reverse Charge Mechanism Other parties of the agreement located abroad, hence, not falling under category of manpower recruitment and supply agency Impugned order nowhere established that foreign entities involved in such business of manpower supply All statutory obligations as an employer, like payment of provident fund, MS, etc., fulfilled by appellant No consideration being paid for obtaining manpower supply service from foreign companies Reimbursement amount paid by appellant to foreign companies relates to cost of salaries and wages of employees working under appellant No tax liability arises Demand of Service Tax not legally sustainable. c. In the case of BAIN INDIA PVT. LTD. Versus COMMISSIONER OF SERVICE TAX, DELHI [2014 (35) S.T.R. 553 (Tri. Del.)] the Hon ble CESTAT has held that :- Demand Manpower supply service Holding company in USA deputed some staff to appellant company in India Payment of salaries of expatriate employees in India and deduction of Income Tax at source in India, fact not disputed By mere payment of amount towards social security ..... X X X X Extracts X X X X X X X X Extracts X X X X
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