TMI Blog2018 (7) TMI 1532X X X X Extracts X X X X X X X X Extracts X X X X ..... is relevant. Unless this is specified, it cannot be examined whether the services provided by the respondent are incidental or auxiliary to that category - the services rendered by the respondent cannot be classified as “Business Auxiliary Service”. Appeal dismissed - decided against Revenue. - APPEAL NO: ST/1009/2009 - A/30668/2018 - Dated:- 5-6-2018 - Mr. M.V. RAVINDRAN, MEMBER (JUDICIAL) And Mr. P.V. SUBBA RAO, MEMBER (TECHNICAL) Shri Dass Thavanam, Superintendent/AR for the Appellant. Shri Joseph K. Antony, Advocate for the Respondent. [Order per: P. VENKATA SUBBA RAO] 1. This appeal has been filed by Revenue against Order-in-Appeal No. 42/2009(H-III)ST, dated 25.09.2009 passed by Ld. Commissioner (Appeals) in favour of the appellant, setting aside the Order-in-Original No. 12/2009 (ST), dated 13.03.2009 passed by Ld. Additional Commissioner. 2. Heard both sides and perused the records. The issue in brief is that the respondent herein is a service provider to M/s ITC Limited who are the manufacturers of paper. The respondents were registered under Business Auxiliary Services as well as under Manpower Supply Service under the provision of se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ys ) c) Medical ) d) PF ) -26.03 e) Bonus ) f) Cost of Safety shoes ) This rate does not include annual leave reimbursement. No separate bonus will be paid to the Service Provider. Bonus element is Considered while deciding rate/ton and Service Provider has to pay bonus As per attendance record. Sd/- xx xx xx P.V. Rama Rao CONTRACTOR Sd/- xx xx xx Harinarayanan A Manager (Finishing House) B) Second Agreement: ANNEXURE A To deploy unskilled casual labour for carrying out the below jobs: To collect and transport loose broke that gets generated while rewinding. To cut the core pipes into desired size and to carry them onto the rewinder. To apply joint to the paper reel. To push the paper reels on to the sheeter unwind stands. To carry wooden pallets and place them on sheeter. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) d) PF ) -26.03 e) Bonus ) f) Cost of Safety shoes ) This rate does not include annual leave reimbursement. No separate bonus will be paid to the Service Provider. Bonus element is Considered while deciding rate/ton and Service Provider has to pay bonus As per attendance record. 3. A show cause notice was issued to the respondent herein calling upon to explain as to why the services rendered should not be classified as Business Auxiliary Services and appropriate differential service tax should not be recovered from them, invoking the extended period under the proviso to Section 73(1) of the Finance Act, 1994. It was also proposed to demand interest under sections 76, 77 78 of the Finance Act, 1994. Ld. Additional Commissioner vide Order-in-Original No. 12/2009, dt. 13.03.2009 confirmed the demand along with interest and imposed penalties under sections 76, 77 78 of the Finance Act, 1994. 4. Aggrieved, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the services stretches to 01.07.2003 and therefore the adjudicating authority had accordingly made and confirmed the demand. d) Even on the grounds of time bar, their proceedings are not sustainable as the entire activity of the assessee is known to the department sine their registration in June 2005. e) The adjudicating authority has not reported the findings as to how the additional responsibility of supervision and quality of work of the manpower required to be assured under the agreement make man power supply service are classifiable as Business Auxiliary Service. 5. In the grounds of appeal, Revenue reiterated the aforesaid backgrounds and argued that the agreements entered into by the service provider with ITC show that one type of agreement provides for payment per worker while the other agreement provides for payment for carrying out a job in rupees per tonne. In all the agreements, the contractor has to carry out the jobs specified by employing his labour, supervisor, forklifts etc. and also has to carry out the jobs in terms of various agreements entered into. The definition of Business Auxiliary Service, clause (vii) is an inclusive definition which says any se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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