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2023 (12) TMI 80 - CESTAT KOLKATAClassification of service - Manpower Recruitment & Supply Agency or not - material period executed various jobs entrusted to them in the plants of HEC, as per the Work Orders issued by HEC, on principal to principal basis - HELD THAT:- A plain reading of the definition of the term Manpower Recruitment or Supply Agency clearly reveals in order to fall within the above definition, the activity should be for providing any service directly or indirectly in any manner for recruitment or supply of man-power temporarily or otherwise to a client. A perusal of the Work Orders issued by HEC clearly reveals that the Appellant societies executed the jobs as the contractors by engaging the workers from their roll and it further reveals that the job was mentioned in terms of quantity and not based on number of workmen supplied or engaged. The rate was fixed per Ton basis. The agreements as per the Work Orders did not require or specify the number of workers to be employed and the number of days for which the workers would be engaged. It is for the respective appellant societies to execute the jobs, specified in the Work Orders by deploying as many numbers of workers as per its convenience and discretion. The Principal Company HEC was interested only in the execution of the job entrusted to the Appellant societies at the agreed rates and also within the specified time frame - The wage bills of the workers are not only properly prepared as per Minimum Wages Act, but also paid and their CPF, ESI etc. are properly deducted and deposited to the respective authorities. This does not means that the man power supplied were under the rolls of HEC. Thus, it is observed that the service rendered by the Appellant would not fall within the ambit of “Manpower Recruitment & Supply Agency” as defined under Section 65(68) of the Act read with Section 65(105) (k). The impugned order confirming the demands under Manpower Recruitment & Supply Agency service is not sustainable - Since the demand itself is not sustainable, the question of charging interest or imposing penalty does not arise - Appeal allowed.
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