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TMI Blog2018 (6) TMI 1434X X X X Extracts X X X X X X X X Extracts X X X X ..... oods Transport Service (GTA), Cleaning Service, Manpower Supply Service, Cargo Handling Service, Packing Service, Construction of Complex Service and Commercial and Industrial Construction Service, Maintenance and Repair Service of Immovable property and accordingly, they were called upon to explain as to why the amount of Rs. 34,77,344/- shall not be recoverable from them as Service Tax alongwith the interest and the imposition of penalty upon them. 3. While adjudicating the said show cause notice, the original Adjudicating Authority vide order dated 22nd November, 2010 has confirmed the demand of Rs. 15,92,170/- alongwith the interest for rendering the services as that of GTA, the service for cleaning SILO, MCL was held to be the cleaning service, for manpower supply, partly upholding the service of cargo handling, packaging. The services of commercial and Industrial Construction and that of maintenance and repair services were also confirmed holding them to be admitted by the appellant. Same amount of penalty was also imposed thereby dropping the demand of Rs. 18,85,174/-. Aggrieved of this order, the same was challenged. The adjudicating authority below that is the Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice by whatever means and for the purpose, he should be issuing a consignment note. None of the criteria is met by the appellant in the present case. We are of the firm opinion that the order under challenge qua confirming GTA Service Tax liability is not sustainable. The argument of ld. DR that the charges of rate are shown separately in the invoice are of no relevance for the purpose in view of the apparent fact that the amount of money paid by the appellant was the price for the Gitti purchased by them, that too on FOR basis, for the said Gitti to be delivered from the site of purchase to the site of the appellant. Irrespective freight is shown separately in the invoice, the same cannot be considered as equivalent to the consignment note, which is the mandatory requirement of Section 65 (50b). 5.1.3 Applying the ratio of the case Nandganj Sihori Sugar Co. Ltd. vs. CCE, Lucknow - 2014 (34) STR 850 (Tri. Del.), we hold that the appellant M/s.R.K.Gupta was not rendering Goods Transport Agency Services and we hereby drop the impugned demand qua GTA services. (2) CLEANING SERVICES: 5.2 The appellant has relied upon the work contract dated 3rd December, 2005 as was executed by Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vided by the appellant herein cannot be categorized as supply of manpower by a manpower supply agency. Also there is no evidence that the consideration was paid separately for manpower but it is apparent that it was required for the job as was agreed to be rendered by the appellant. There can be the levy of supplying manpower services. We draw our support from the case of Ritesh Enterprises vs. CCE, Bangalore - 2010 (18) STR ) Tri.-Bang.) Hence, the demand on this ground cannot be confirmed. (4) CARGO HANDLING SERVICE: 5.4 The ld. Counsel for the appellant has submitted that the facts of the case make it apparently clear that the appellant was simply shifting/ transporting the cement bags from shop floor to packing machine only i.e. within the factory during the course of packing of cement and as such same cannot be called as the cargo handling.In support of their claim, ld. Advocate relied upon the decisions in the case of Gaytri Construction Co. vs. CCE, Jaipur- 2012 (25) STR 259 (Tri.-Del.),Purshottam Lal vs. CCE, Jallandhar -2015 (38) STR 161 (Tri.-Del.) and CCE & ST, Meerut-I vs. Jaspal Darshan Lal -2016 (45) STR 156 (Tri.-All.). 5.4.1 The arguments were vehemently rebutted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... good having its own marketable value, it will be the part of manufacture of cement only after it gets filled with the cement. Prior that activity it is a distinct goods in itself, then from a bag of cement. The admitted fact in the present case is that the appellants were imprinting the HDPE bags, the same is sufficient to categorize the activity as packaging activity. In as such, we hold that Commissioner (Appeals) has committed an error while dropping this liability. 7. Chapter Note 6 of Chapter 4 of First Schedule of Central Excise Tariff Act, 1985 is very much relevant for the same qua it reads as follows:- "Chapter 4, Note 6. In relation to products of this Chapter, [labelling or relabeling of containers or repacking] from bulk packs to retail packs or the adoption of any other treatment to render the product marketable to the consumer, shall amount to "manufacture"." 8. Also Section 66D (f) decides that in process amounting to manufacture or production same not be leviable to Service Tax. Since the loose cement is not a marketable commodity unless and until it is packed in a bag, the activity of the appellant was incidental to manufacture and as such was not a packaging ..... X X X X Extracts X X X X X X X X Extracts X X X X
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