w w w . L a w y e r S e r v i c e s . i n



The Commissioner of GST & Central Excise, Chennai South Commissinerate, Chennai v/s M/s. Saksoft Ltd., Perungudi, Chennai


Company & Directors' Information:- SOUTH INDIA CORPN PRIVATE LIMITED [Active] CIN = U51102TN1935PTC002652

Company & Directors' Information:- SAKSOFT LIMITED [Active] CIN = L72200TN1999PLC054429

Company & Directors' Information:- SAKSOFT LIMITED [Not available for efiling] CIN = U99999DL1999PTC102528

Company & Directors' Information:- CHENNAI SOUTH INDIA CORPORATION PRIVATE LIMITED [Active] CIN = U51900TN2011PTC081632

Company & Directors' Information:- GST PRIVATE LIMITED [Strike Off] CIN = U27104MH2002PTC136410

Company & Directors' Information:- SOUTH INDIA COMPANY LIMITED [Dissolved] CIN = U74900KL1952PLC001113

    C.M.A No. 655 of 2020

    Decided On, 04 August 2020

    At, High Court of Judicature at Madras

    By, THE HONOURABLE DR. JUSTICE VINEET KOTHARI & THE HONOURABLE MR. JUSTICE KRISHNAN RAMASAMY

    For the Appellant: K.S. Ramasamy, Standing Counsel. For the Respondent: Raghavan Rambathran for M/s. Lakshmikumaran Associates, Advocates.



Judgment Text


(Prayer: Appeal under Section 35G of the Central Excise Act, against the Final Order No.4040112019 dated 27.02.2019 made in Appeal NO.ST/17812012 DB on the file of the Customs, Excise and Service Tax Appellate Tribunal, Chennai.)

Dr. Vineet Kothari, J.

1. The Court was held by Video Conference, as per the Resolution of the Full Court dated 3 July 2020, by Judges at their respective residence and the counsel, staff of the Court appearing from their respective residences.

2. The Revenue has filed the present appeal against the order of the learned Tribunal dated 27.02.2019 on the issue relating to taxability of the service tax on the manpower supplies made by the respondent/Assessee. The said relevant issue no.4 has been discussed by the learned Tribunal in its order dated 27.02.2019, in the following manner:-

3.2.3 With regard to the issue in Sl.No.4 of the above table, Ld. Counsel submitted that the demand is made under the category of Manpower Recruitment or Supply Agency Services. During the relevant period, there were two views as to the service tax payable under this category for the supply of IT related services. He pointed out that the decision in the case of M/s. Future Focus Infotech India (P) Ltd. Vs. Commr. of S.T., Chennai - 2010 (18) S.T.R. 308 (Tri. - Chennai) held the issue in favour of the Revenue whereas the decision in the case of M/s. Cognizant Tech. Solutions (I) Pvt. Ltd. Vs. Commr., LTU, Chennai - 2010 (18) S.T.R. 326 (Tri. - Chennai) held the issue in favour of the Assessee. Since there were two views on the very same issue of taxability in regard to Manpower Supply to IT related services, he argued that the appellant cannot be saddled with an intention to evade payment of duty. To support his argument that the extended period of limitation cannot sustain in this demand, he relied upon the decision in the case of M/s.Coromandel Infotech India Ltd. Vs. The Commissioner of C.S.T. & Central Excise, Chennai South Commissionerate - 2019 (1) T.M.I. 323 - CESTAT Chennai.

.....

4.2 With regard to the issue in S1.No. 4 of the above table, she much emphasized that the facts of this case would not fit into the facts as presented in the case of M/s. Cognizant Tech. Solutions (I) Pvt. Ltd. (supra). She therefore argued that the said decision would not apply to the appellant’s case and the decision in the case of M/s. Coromandel Infotech India Ltd. (supra) also cannot apply. That the facts of the present case would cover the decision as laid in the case of M/s. Future Focus Infotech India (P) Ltd. (supra).

.....

8.1 The issue in Sl. No.4 of the above table is with regard to the demand of service tax under Manpower Recruitment or Supply Agency Services. Ld. Counsel for the appellant has placed reliance on the case of M/s. Coromandel Infotech India Ltd. (supra). In the said decision, the Tribunal had noted that there were two views possible, as rendered in the decisions of M/s. Future Focus Infotech India (P) Ltd. (supra) and M/s. Cognizant Tech. Solutions (I) Pvt. Ltd. (supra). Taking note of this situation, the Tribunal had set aside the demand which was raised invoking the extended period.

8.2 In the present case also, the demand is entirely invoking the extended period. Therefore, applying the ratio in the case of M/s. Coromandel Infotech India Ltd. (supra), we are of the view that the demand cannot sustain and requires to be set aside, which we hereby do.

.....

9. The appeal is allowed with consequential reliefs, if any, as per law. The Miscellaneous Application for change of cause title filed by the Department is allowed.

Sd/- Sd/-

(Madhu Mohan Damodhar) (Sulekha Beevi C:S)

Member (Technical) Member (Judicial)

3. The learned counsel for the Revenue Mr.K.S.Ramasamy, has sought to raise the following questions of law in the present appeal before us :-

1. Whether the CESTAT decision in following the ratio of Cognizant case is correct?

2. Ought CESTAT not confirmed demands on the basis of Future Focus case as facts are similar, especially CESTAT has not discussed the applicability of the cases and given findings but merely says that there are two different views on the issue.?

3. Is not the CESTAT order liable to be quashed in view of (2) above?

4. The learned counsel for the Revenue submitted that without discussing the taxability part of the said service provided by the Assessee, the learned Tribunal has not allowed the Revenue to apply the extend limitation in the case of the Assessee merely because in the contemporary period, there are two views of the Tribunal itself in two different orders viz., in the case of M/s. Future Focus Infotech India (P) Ltd. Vs. Commr. of S.T., Chennai and M/s. Cognizant Tech. Solutions (I) Pvt. Ltd. Vs. Commr., LTU, Chennai and thus following its own judgment in the case of M/s.Coromandel Infotech India Ltd. vs. Commissioner of C.S.T. & Central Excise, Chennai South Commissionerate, the Tribunal held about the taxability of the particular services, that the extended limitation cannot be invoked by the Department.

5. The learned counsel for the respondent/Assessee, however sought to defend the said order.

6. Having heard both the learned counsel and upon perusal of the order of the learned Tribunal, we are satisfied that the Tribunal has not at all assigned proper reasons for its order on the said issue no.4, regarding taxability of the manpower services provided by the Assessee, and whether in those facts and circumstances of the case, the extended limitation could be invoked by the Department or not. Without discussing the relevant facts and ratio of its two judgments, referred to and relied on by the learned Tribunal, and the facts of the case of the respondent/Assessee, merely writing these citations in the said order itself is not enough. The order of the final fact finding body at the level of Tribunal has to be self contained and should discuss the relevant facts and reasons for arriving at a particular conclusion. The higher Constitutional Courts hearing the appeals against such orders cannot be expected to delve deeper into the study of facts and ratios of the orders of the learned Tribunal, in the manner in which the learned Tribunal perhaps thought.

7. Mere reference of the citations in the order and then holding that the extended limitation could not be invoked to the Revenue is a serious prejudice caused to the interest of the Revenue, in the absence of discussing the relevant facts, and giving reasons, for arriving at a particular conclusion. We are restraining ourselves from expressing anything further on the tenor of the order passed by the learned Members of the Tribunal in the present case.

8. We hope and expect that the learne

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d Members, and even other Members, who deal with the appeals from now onwards, in such Revenue matters, should understand the letter and spirit of these observations of the High Court. 9. We accordingly set aside the said order of the learned Tribunal on the said issue no.4, regarding taxability of manpower services and application of extended limitation in the present case and restore the appeal back to the learned Tribunal, with a request to hear the appeal de novo on the said issue and decide the same as expeditiously as possible. We are not in a position to answer the questions raised by the Revenue in the present appeal at this stage, for the aforesaid reasons. 10. The appeal is accordingly disposed of, without any order as to costs.
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