TMI Blog2010 (4) TMI 904X X X X Extracts X X X X X X X X Extracts X X X X ..... t on the above basis, the appellant was directed to show cause as to why the service tax amount of Rs. 33,83,243/- should not be demanded and recovered under the proviso to Section 73(1) of the Finance Act, 1994 (hereinafter referred as the Act) read with Section 11A(1) of the Central Excise Act, 1944, interest under Section 75 of the Act read with Section 11AB of the Central Excise Act should not be confirmed and penalty under Sections 76, 77 and 78 of the Act read with Section 11AC of the Central Excise Act, should not be imposed; that on adjudication, the demand raised in the SCN-cum-Demand Notice was confirmed along with interest, besides imposing equal penalty under Section 78 of the Act by totally agreeing with the allegations contained in the SCN-cum-Demand Notice. 2. Aggrieved against the above order, the appellant has come up with the present appeal along with stay petition. The contentions of the appellant, inter alia, are as under :- (i) that the adjudicating authority has not given an opinion on the submissions made by the appellant and passed a stereotype order and accordingly, OIO passed by the adjudicating authority is not a speaking order; (ii) that the servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal memorandum. Further, he has undertaken to produce the following documents within a week s time. (a) copy of Registration Certificate of the appellant registered under Charitable Trust Act, (b) copy of agreement entered between the appellant and the labour contractor, (c) documents evidencing disbursement of salaries to the labourers (whether salaries disbursed by the appellant or by the labour contractor, and (d) copies of profit and loss statement. 3.2 As promised during the course of PH, the appellant submitted all the above documents. 4. I have gone through the case records including record of PH and other documents submitted after PH. After waiving pre-deposit, I take the main appeal itself for final decision. The issue to be decided in the present appeal is that whether the appellant s activities would fall under manpower supply agency or not. Before coming to the conclusion, the circumstances which led to forming a Society (i.e. the appellant), purpose of the Society, constituents of the Society, relationship between the appellant (society) and sugar factory (the client), relationship between the appellant and labour contractors and mode of payments to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove statement of facts, the following facts emerge - (i) that the Government of India fixes the sugarcane price to be payable to the farmers by issuing notification from time to time; that it is the responsibility of the farmers to supply sugarcane at the factory gate of sugar factory; that the farmers, being un-organized and not well versed in organizing manpower and also financially not sound, formed the Society which is registered under the Co-operative Society Act and the Society is formed for undertaking the welfare activities of the farmers and one of the activities is helping the farmers, who are growing sugarcane in their respective fields for cutting/harvesting and transporting of sugarcane to the sugar factory; that the Society, on behalf of the farmers ( the fact is that the farmers themselves undertake the work under the name of the Society) enters into contract with labour contractors for arranging manpower for the purpose of harvesting/cutting and transporting of sugarcane to the sugar factory; that the farmers also enter into agreement with sugar factory, according to which, whatever cost incurred for harvesting/cutting and transporting, will be paid by the facto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has to hear both sides and then arrive at the conclusion. But in the instant case, the adjudicating authority, without hearing other side, has discussed the allegations contained in the SCN and confirmed the huge amount against the appellant, which is running under loss as per the profit loss account statement submitted by the appellant. Accordingly, I hold that no case has been made out against the appellant, since he is not a service provider and the sugar factory, the client in the instant case, is not a service receiver, in as much as the service provider, in the instant case, is the labour contractors and the service receivers are farmers and the services were done in the farmers agricultural fields. 5. Other than the merits, on which the appellant has already succeeded, the impugned OIO is not also sustainable on the basis of time bar aspect too. The same appellant was before me during the month of December, 2007 against the confirmation of duty of Rs. 19,98,487/- under OIO No. 03/ST/ADDL./2007 dated 14-3-2007 under Clearing Forwarding Agent service for the period from 1999-2000 to 2003-04. In other words, the department has slapped the appellant with SCN and confirm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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