TMI Blog2013 (8) TMI 218X X X X Extracts X X X X X X X X Extracts X X X X ..... activity undertaken cannot, by any stretch of imagination, be called supply of manpower. Held that:- Agreement entered into between the Trust and the transporters is for the transporter to engage labour for harvesting and transporting the sugarcane to the sugar factory and the rates agreed to be paid are on tonnage basis of the sugarcane supplied and not for the supply of any manpower. From these agreements, it is obvious that no manpower has been supplied by the appellant to the sugar factory to constitute supply of manpower. Also, as per decision in the case of Amrit Sanjivni Sugarcane Transport Co. Pvt. Ltd. [2013 (8) TMI 58 - CESTAT MUMBAI], it has been held that harvesting of sugarcane and transportation thereof to the sugar fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rters, by engaging labourers, would harvest the sugarcane and transport the same to the sugar factory either by truck or tractor or by engaging labourers for carrying head loads. The sugar factory agreed to pay charges for the services rendered based on the tonnage of sugarcane supplied and different rates were agreed to be paid for sugarcane cutting and transportation by various means. The sugar factory paid commission to the contractors at rates ranging from 15 to 20% of the charges for harvesting and transportation. All these payments were made through the Trust and the Trust, in turn, distributed the amounts to the contractors. For the services rendered by the Trust to the sugar factory, the sugar factory paid them supervision charges t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugarcane by various means, loading of the sugarcane onto the truck etc. The Trust received only supervision charges and nothing else. The payment for the work undertaken was routed through the appellant who disbursed the same to the persons/contractors who actually undertook the work. For undertaking the work of sugarcane harvesting and transportation, the appellant Trust entered into agreements with transport operators along with their team of labourers and as per these agreements, it was the transporters' responsibility to harvest the sugarcane and reach it upto the sugar factory. The Trust did not engage any labour for this purpose, but got the work done through contractors. Thus, the activity undertaken by the Trust did not involve any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Deputy Chief Accountant of the sugar factory as also the Secretary of the Trust, they have agreed that the activity undertaken by them amounted to supply of manpower. This admission by the persons concerned should be a relevant factor for classification of the service and, therefore, he pleads that the impugned order is sustainable in law. 6. We have carefully considered the rival submissions and also perused the agreements entered into by the appellant with the sugar factory as also with the transporters. From the agreement dated 2.1.2006 with the sugar factory, it is seen that the same is for cutting and transportation of sugarcane from the farmer's fields to the sugar factory, who have agreed to sell their sugarcane to the sugar fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r recruitment or supply agency service and would be more appropriately classifiable under "business auxiliary services". These decisions relied upon by the appellant and the orders of the Commissioner (Appeals) also support this view. Merely because in the statements, the deponents therein, based on their understanding agreed that the services come under the manpower supply, the same cannot be the basis for demand of service tax. The demand has to be made in accordance with law, taking into account the contracts entered into by the appellant with the various parties involved in the transaction. The demands cannot be confirmed on the basis of a wrong understanding entertained by the appellant or anybody else. In view of the above, we find th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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