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TMI Blog2009 (10) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Warehouse. On a specific intelligence, the lower authorities visited the premises of the appellants and resumed documents. On scrutiny of the said documents it was noticed by the officers of the revenue that the appellants were to provide all the services as enumerated above, had supplied labourers to M/s. Aspin Wall & Co. and CWC. On conclusion of the investigation and scrutiny of the documents and after recording the statements of various persons, the lower authorities felt that the services rendered by the appellant would fall under 'manpower recruitment and supply agency' and having not discharged the service tax liability, appellants are liable for discharging service tax liability for the period 16-6-2005 to 13-12-2006 in Appeal No. ST/590/08 and for the period 16-6-2005 to 28-2-2007 in Appeal No. ST/591/08. Coming to such a conclusion, show-cause notices were issued to the current appellants. The appellants filed a detailed reply to the show-cause notice and contested each and every allegation made in the show-cause notice. The main ground of the appellants before the adjudicating authority was that the contract which was given by M/s. Aspin Wall & Co. and CWC was a wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h an order the appellants are before us. 3. Learned counsel appearing on behalf of both the appellants would submit as under :— (1) The definition of manpower recruitment or supply agency as contemplated under section 65(105)(k) of the Finance Act does not envisage a situation where there is a contract for completing a job on ad hoc, handling and transportation of the goods within the warehouse of the CWC and/or M/s. Aspin Wall & Co. He would draw our attention to the said definition of the manpower recruitment and supply agency and also to the taxable services provided by manpower recruitment and supply agency. It is his submission that the works order issued by CWC and Aspin Wall & Co. are specific and the scope of work to be executed is handling of bulk goods, bagging of fertilizers, feeding of bags for filling fertilizers, stacking, destacking, etc. He also draws our attention to the various terms and conditions specified in the work order. It is his submission that the contractors, i.e., appellants were required to arrange to do the work round the clock in the plant as regards the execution of work and were responsible for the complete execution of the work. It is his submis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e contentions of the appellants cannot be accepted as the adjudicating authority has taken into consideration the entire facts of the case in both the appeals. It is her submission that the activities rendered by the appellant is for supply of labourers to M/s. Aspin Wall & Co. and to M/s. CWC for handling specific items of work. It is her submission that it can be seen from the works order that the appellants were awarded the handling job and the appellant as a labour contractor working under license issued by Department of Labour, would directly indicate that the handling job nothing but supply of manpower. She would draw our attention to the scope of entry "Manpower Recruitment Agency" and submit that the doctrine of 'cantemporanea expositio' may be invoked to cull out the intendment by removing ambiguity in its understanding of the statute by the executive. She relies upon the decision of the Supreme Court in the case of Indian Metals & Ferro Alloys Ltd. v. CCE 1991 (51) ELT 165 for the proposition that decisions up to date and applied the doctrine to the understanding by the revenue of provisions in the Income-tax Act. She would draw our attention to the Master Circular dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u the handling job for a period of further two years as per the following rates, terms and conditions : Inside the Plant : Feeding bags for filling bulk, stitching, shifting bagged cargo and Stacking - Rs. 13.75 Per mt. Destacking and loading bagged cargo on to long trucks - Rs. 06.00 per mt. Destacking and loading onto trucks for wagon loading - Rs 09.00 per mt. High stacking above 15 tier - Rs. 03.00 per mt. Employment of casuals for tipper cleaning, and in the plant, providing shovels buckets etc. - Rs. 03.00 per mt. Service charges - Rs. 03.50 per mt. Side godowns : Unloading and stacking wagon cargo - Rs. 12.75 per mt. Destacking and loading - Rs. 10.00 per mt. Restandardization of c/t bags - Rs. 25.00 per mt. Casuals for sweeping collection - Rs. 00.50 per mt. Service Charges - Rs. 03.00 per mt. Gunny handling Unloading HDPE Bales - Rs. 04.00 per bale Reloading of HDPE Bales - Rs. 04.00 per bale 1. The rates given above shall be firm without any escalation during the tenure of this work order. However the company reserves its right to extend the same for further period on mutual agreement." 2. The company is at liberty to enter into parallel contract with any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to extend for a further period of three months at the following negotiated rate :— 1. Handling Services, above Schedule of Rates (Appendix VI) : 162 per cent (one hundred sixty-two per cent). 2. Transportation to and from goodshed to Warehouse and vice versa : Rs. 54 (Rupees fifty four only) per mt. only on point to point basis. 3. Internal Transportation: Rs. 20 (Rupees twenty only) per mt. only on point to point basis. You are advised to comply with the following requirements by 31-12-2004 :— 1. Execute an agreement on a stamp paper of appropriate value but not less than Rs. 100 as per the latest stipulation of Government of Karnataka along with two witnesses to the agreement. 2. The Security Deposit of Rs. 60,000 (Rupees sixty thousand only) in the form of Demand Draft. 3. Obtain the license under Contract Labour (R&A) Act, 1970 from the concerned - RLC(C)/ALC(C) in case 20 or more labourers are engaged on any day during the tenure of the contract." 8. As regards the works executed by the appellant M/s. Karwar Dock & Port Labour Co-operative Society Ltd., we find from the records and the documents produced before us that they were intimated about the berthing of vess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her directly or indirectly. 10. On perusal of the records and the submissions of learned SDR on the Master Circular, dated 23-8-2007, we find that the issue is raised at clause 010.02 is as under : Business or industrial organizations engage services of manpower recruitment or supply agencies for temporary supply of manpower which is engaged for a specified period or for completion of particular projects or tasks In the case of supply of manpower individuals are contractually employed by the man-power recruitment or supply agency. The agency agrees for use for the services of an individual, employed by him to another person for a consideration. Employer- 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 Whether service tax is liable on such service under manpower recruitment or supply agency's services 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 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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