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TMI Blog2017 (4) TMI 895X X X X Extracts X X X X X X X X Extracts X X X X ..... -appeal no.PII/PAP/25/2009 dated 9th February 2009 of Commissioner of Central Excise (Appeals), Pune - II has dropped the demand for tax of Rs. 24,43,706/-, along with interest thereon, and penalties under section 76, 77 and 78 of the Finance Act, 1994. 2. Appellant operated a distillery, which, owing to financial difficulties was, in accordance with a restructuring terms prescribed by the National Bank of Agricultural and Rural Development (NABARD), handed over to M/s Deccan Bottling and Distilling Industries Pvt Ltd on tendering for a period of five years with approval of Commissioner of Sugar, Government of Maharashtra. In accordance with the lease agreement, 108 employees of the lessor were to be utilised by the lessee for carrying out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s placed reliance on Sanjeevani (Takli) SSK Ltd v. Commissioner of Customs & Central Excise, Aurngabad [2010 (10) STR 268 (Tri.-Mumbai)] which was merely a prima facie view yet to be decided in appeal. Learned Authorised Representative drew our attention to the final order in the very same matter which had been relied upon by the first appellate authority in re Sanjeevani (Takli) SSK Ltd v. Commissioner of Customs & Central Excise [2014-TIOL-355-CESTAT-MUM]. On perusal of the order, we find that the taxability of temporary placement of workers of the lessor with lessee has been sustained. 5. On the other hand, Learned Consultant appearing for the respondent drew attention to the circular of the Central Board of Excise and Customs no.B1/6/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther contributions. Even if the arrangement does not involve the recipient paying these staff costs to the supplier (because the salary is paid directly to the individual or the contributions are paid to the respective authority) these amounts are still part of the consideration and hence form part of the gross amount.' 6. From the above it is seen that the transaction that is sought to be taxed is supply of manpower for a specific period or in relation to completion of a particular project/task and that the staff are not directly employed by the recipient even though the working under the direction of recipient. Of particular reference is the elaboration, in the context of the representation made by the Gem and Jewellery Export Promotion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e absence of a consideration will not arise at all.' would apply to the facts of the present case and to take it out of the ambit of the taxability. 8. Turning to the decision cited by the Learned Authorised Representative, we find that the facts in re Sanjeevani (Takli) SSK Ltd does not conform to the facts of the present case. In that dispute there is nothing on record to show that the condition of lease was subject to an official sanction or that the portion of wages retained by the lessor was to comply with the direction of the financial agency. We also note that the decision therein was rendered on a finding of constructive supply of manpower which has been arrived at by controverting the submission made on behalf of the assessee. As ..... X X X X Extracts X X X X X X X X Extracts X X X X
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