TMI Blog2018 (6) TMI 1434X X X X Extracts X X X X X X X X Extracts X X X X ..... of cleaning activity under Section 65 (24b) - demand upheld. Manpower Services - Held that:- No doubt the earlier word of “commercial concern” is substituted by word “person” vide an amendment dated 18th April, 2006, but still we are of the firm opinion that it does not extend to an individual person discharging any other service for which he need the manpower, because the word agency still continues in the definition and for the explanation as above under GTA service, the Services provided by the appellant herein cannot be categorized as supply of manpower by a manpower supply agency - 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 - demand set aside. Cargo Handling Service - Held that:- For any service to be called as cargo handling service the loading, unloading, packing or unpacking should be meant only and only for transport, as it is very much evident from the definition under Section 65 (23) of the Act. Not only this, such services should be provided for freight. The definitions specifical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ginal Adjudicating Authority vide order dated 22nd November, 2010 has confirmed the demand of ₹ 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 ₹ 18,85,174/-. Aggrieved of this order, the same was challenged. The adjudicating authority below that is the Commissioner (Appeals) vide order dated 29th May, 2011 has confirmed the demand for ₹ 3,68,503/- for rendering the services as that of Goods Transport Agency, Cleaning and Supply of Manpower. However, without any interest but with the imposition of penalty to the said amount. Aggrieved of the said order, both the parties have filed the above appeals. Appellant is aggrieved of the amount of demand as has been confirmed on the plea that appellant is not providing any services as are confirmed by the Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Mangalam Cement Ltd. in favour of the appellant with respect to cleaning, submitting that the activity actually amounts to collection of cement and as such is not a cleaning service. 5.2.1 Ld. DR on the other-hand has submitted that cleaning through air slide is an activity, which is very much covered under Section 65 (24b) of 1944 Act. 5.2.2 After hearing both the sides, we are of the considered opinion that the authorities below have already reduced the demand for cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 by the ld. D.R. submitting that any kind of shifting or transportation of goods by any means of Rail, Road or Ship or Air is an activity which can be called as cargo handling activity. 5.4.2. After hearing both the ld. Counsels on this issue, we are of the firm opinion that for any service to be called as cargo handling service the loading, unloading, packing or unpacking should be meant only and only for transport, as it is very much evident from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hile 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 service. We draw our support from the decision of Hon ble Supreme Court in the case of Collector of Central Excise, Bombay vs. S.D. Fine Chemicals - 1995 (77) E.L.T. 49 (S.C.) wherein it was held that word manufacture is not confined to the natural meaning but it is an extensive definition which include the incidental or ancillary procedures meant to the completion of manufactured product We hold that the Department has raised a wrong ..... X X X X Extracts X X X X X X X X Extracts X X X X
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