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TMI Blog2009 (12) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... id documents it was noticed by the officers of the revenue that the appellants were to provide all the service 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 & supply agency' and having not discharged the service tax liability, appellant is liable for discharging service tax liability for the period from August 2005 to December 2006. Coming to such a conclusion, show-cause notices were issued to the current appellant. The appellant 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 appellant before the adjudicating authority was that the contract which was given by M/s. Aspin Wall & Co. was a works contract and not for supply of labourers. It was also argued that the show-cause notice is hit by limitation. The learned Commissioner (Appeals) after considering the submissions made by the appellant before him during the personal hearing an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iary. The service tax would be leviable only when the services of a person are engaged for recruitment or supply of artisans.' Following the ratio of above decisions and circular and my above findings, I hold that the subject activity of loading, standardization, unloading, stacking, weighing etc., carried out by the appellants, by deploying their own employees at the godown premises of M/s. Aspinwall & Co., Mangalore should be classified as Manpower recruitment agency service and the service tax is leviable on the said activity." Coming to the above reproduced conclusion, the learned Commissioner (Appeals) classified the services rendered by the appellant under the category of 'manpower recruitment and supply services' and confirmed the demand, demanded interest under section 75 of the Finance Act, imposed penalties under sections 76, 77 and 78 and also under rule 7 C of the Service Tax Rules. Aggrieved by such an order the appellant is before us. 4. Learned counsel appearing on behalf of 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. It is his submission that the appellant has got himself registered with the Assistant Labour Commissioner and registered with licensing authority under the Contract Labour Act and for doing the work of loading and unloading in the establishment of M/s. Aspin Wall & Co., it cannot be interpreted that the said registration with the Assistant Labour Commissioner would directly indicate that the appellants are contractors and supplying labour. On limitation it is his submission that the service tax registration was taken by the appellants under the categories of provider of cargo handling services and GTA services and department was aware of the activities undertaken by the appellant in the godown of M/s. Aspin Wall & Co. It is prayed that the impugned orders be set aside and appeal be allowed. 5. Learned SDR on the other hand would submit that the 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 his submission that the activities rendered by the appellant is for supply of labourers to M/s. Aspin Wall & Co. for handling specific items of work. It is his submission that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ." From the plain reading of the above reproduced definitions in the Finance Act, 1994, we find that the activity should be providing of any service directly or indirectly in any manner for recruitment or supply of manpower temporarily or otherwise to a client in order to get covered under the said definition. There should be either a recruitment or supply of manpower temporarily or otherwise. We find from the records that M/s Aspin Wall & Co. had given the contract as under: "W.O. No. 015/2005-06, dated 9-7-2005 Messrs S.S. Associates, Behind Sharath Bakery, Surathkal. Dear Sirs Sub: Handling of bulk/bagged fertilizers at IPL New Godown Bykampady Indl. Area. We refer to your quotation dated 25-5-2005 and further discussions we had in connection with handling fertilizers in the IPL New Godown. We are pleased to award you the contract for a period of one year with effect from yesterday the 8th July, 2005 as per the rates, terms and conditions mentioned here below. Particulars Rate per MT Bulk cargo handling Guiding the tippers for unloading properly Sweeping collection in the lorries and flour, Filling standardization and stacking including Payment of tarrex mamoo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereinabove." 9. On a careful consideration of the above reproduced facts from the entire case papers, we find that the contract which has been given to the appellants is for the execution of the work of loading, unloading, bagging, stacking, destacking etc. In the entire records, we find that there is no whisper of supply manpower to the said M/s. Aspin Wall & Co. or any other recipient of the services in both these appeals. As can be seen from the reproduced contracts and the invoices issued by the appellant that the entire essence of the contract was an execution of work as understood by the appellant and the recipient of the services. We find that the Hon'ble Supreme Court in the case of Super Poly Fabriks Ltd. (supra) in paragraph 8 has specifically laid down the ratio which is as under: "There cannot be any doubt whatsoever that a document has to be read as a whole. The purport and object with which the parties thereto entered into a contract ought to be ascertained only from the terms and conditions thereof. Neither the nomenclature of the document nor any particular activity undertaken by the parties to the contract would be decisive." (p. 253) An identical view was take ..... X X X X Extracts X X X X X X X X Extracts X X X X
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