2023 (3) TMI 539 - AT - Service Tax

Classification of services - manufacturing railway sleeper falling under chapter heading 68109990 of the Schedule to the Central Excise Tariff Act, 1985 - reverse charge mechanism - whether the service received by the appellant is Manpower Supply Service or job work service? - HELD THAT:- As per the clause 1A(u) of N/N. 30/2012 – ST dated 20.6.2012, supply of manpower for any purpose by the individual/proprietary firm, Hindu Undivided Family or partnership firm whether registered or not to a business entity registered as body corporate is liable to pay service tax. In this regard, the Commissioner (Appeals) has relied on the GAR-7 challans of M/s Balaji Udyog, one of the five service providers, who has classified their service under Manpower Recruitment Agency. Therefore, the Commissioner (Appeals) has concluded that the service received by the appellant are to be covered under reverse charge mechanism and service tax is payable on 75% of the value of service.

A plain reading of Agreement between the appellant and service provider, M/s Balaji Udyog Ltd. clearly indicates that the service received is that of job work. Perusal of the invoices raised by the service provider to the appellant along with the statement of the job work done by them also shows that the appellant was receiving job work service from this service provider viz., Ms/ Balaji Udyog. It is not material to rely on the definition of the service indicated by the service provider in the GAR 7 challans, when the agreement between the appellant and the service provider is crystal clear.

The issue is no longer res integra as Tribunal, in several decisions rendered in SHIVSHAKTI ENTERPRISES VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE [2015 (12) TMI 682 - CESTAT MUMBAI] and M/S. SHAILU TRADERS VERSUS C.C.E., INDORE [2018 (3) TMI 1282 - CESTAT NEW DELHI] has held that where the service provider had deployed his employees in the manufacturing premises of the appellant for specified job works, the same cannot be held as Manpower Supply Services.

Appeal allowed - decided in favour of appellant.