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TMI Blog2018 (8) TMI 898X X X X Extracts X X X X X X X X Extracts X X X X ..... 2/- towards service tax for the period June 2005 to March 2010 with interest thereon and imposition of penalties under Section 76, 77 & 78 of the Finance Act, 1994. In adjudication, the Commissioner vide impugned order dt. 25.11.2011 upheld the proposals in the SCN and also imposed penalty under Section 78 of the Act and penalty under Section 77 ibid. However, penal proceedings proposed under Section 76 ibid was dropped. Aggrieved, the appellants are before this forum. 2.1 When the matter came up for hearing, on behalf of the appellants, Ld. Advocate Shri M.S. Srinivasa took us through various contracts and agreements with TATA filed in page 69 onwards of the paper book. He submitted a compilation containing copies of such agreements and also sample copies of bills to highlight that the payments were made only towards the contracted work and not against manpower supply. He submitted that the agreements were essential for carrying out specified activities on contract basis for manufacture of instant coffee. 2.2 Ld. Advocate submits that as per the Process Agreement dt. 15.09.2007, on page 82 of the appeal book, the appellants were required to take out licenses and clearances for c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T of cane being crushed. 2.5 Ld. Advocate contends that the agreements therefore are not for supply of manpower but for execution or to actualize the contracted work or job for which consideration is paid not on the basis of man hours or man days but on the basis of quantity viz. per ton or kg. 2.6 The issue involved in this appeal is no longer res integra and is settled in favour of the appellants in a number of decisions for example, in the following cases : i. INDIRA INDUSTRIAL LABOUR WELFARE ASSOCIATION Vs. CCE & ST, CHENNAI-III - 1018 (6) TMI 1363-CESTAT CHENNAI ii. A.MALATHY, PROPRIETRIX OF ARUN ENTERPRISES Vs. CCE, CHENNAI - 2018 (3) TMI 1005-CESTAT CHENNAI iii. BHAGYASHREE ENTERPRISES Vs. CCE, PUNE-I - 2017 (3) G.S.T.L. 515 (Tri.- Mumbai) iv. DHANASHREE ENTERPRISES Vs. CCE, PUNE-I - 2017 (5) G.S.TL.2012 (Tri.- Mumbai) v. INGLE & SONS Vs. CCE, NAGPUR - 2018(4) TMI 540-CESTAT MUMBAI vi. DIVYA ENTERPRISES Vs. CCE, MANGALORE - 2010(19) S.T.R.370 (Tri.-Bang.) vii. RITESH ENTERPRISES AND ANOTHER Vs. CCE, BANGALORE-2010-TIOL-539-CESTAT-BANG. viii. H.T.SHINDE Vs.CCE, PUNE-III - 2016 (1) TMI 621 - CESTAT MUMBAI ix. SHRI HEMANT V DESHMUKH AND SHRI BALARAM V JAT Vs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 65 (105) (k) of the Act and after the amendment caused about on 16.6.2005, 1.5.2006, 1.6.2007 and 16.5.2008, the said provision read as under : "(k) to any person, by a manpower recruitment or supply agency in relation to the recruitment or supply of manpower, temporarily or otherwise, in any manner; Explanation: For the removal of doubts, it is hereby declared that for the purposes of this sub-clause, recruitment or supply of manpower includes services in relation to pre-recruitment screening, verification of the credentials and antecedents of the candidate and authenticity of documents submitted by the candidate. It is therefore evident that the taxable service requires supply of manpower temporarily or otherwise. 5.3 At the same time, there are a number of services which require engagement of manpower at the premises of the client. In our view, supply of manpower service would necessarily entail supply of manpower, temporarily or otherwise. In fact, we find from Section 2 (1) (g) of Service Tax Rules, 1994 had supply of manpower as under :- (g) "supply of manpower" means supply of manpower, temporarily or otherwise, to another person to work under his superintenden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not at the disposal or effective control of the service recipient during the period of contract, but such control is still with the appellants themselves. The nature of services provided cannot then be brought within the fold of Man Power Supply Service. This is the very clarification given by the CBEC in their circular dt. 15.12.2015, relied upon by Ld. Consultant. 5.3 Although Ld. A.R has argued that appellant had not brought up this argument before the lower authorities, it must be kept in mind that the said Board's circular has been issued only after the passing of the impugned order. In any case, appellant is entitled to take a legal plea at any point of time. 5.4 We also find that the decisions relied upon by the Ld. Advocate support the stand of the appellant. This very Bench, in the case of A. Malathy (supra), has held as under : "4. Heard both sides. The foremost issue for consideration is whether the activity of bagging and shipping work executed by the appellant as per the contract for bagging and shipping amounts to 'supply of man power' or not. .... ...... .... 6.3 As regards the service tax liability under the category of manpower recruitment or suppl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated to "maintenance service" rendered by them. There is no allegation whatsoever of appellants having rendered manpower recruitment or supply of agency service. The audit notes further suggest examination as to whether appellants are within the threshold exemption limit allowed to small service providers etc. It is also seen from records that at the instance of the department, TATA vide their letter dt. 30.5.2008 to the Superintendent of Central Excise, Theni Range submitted copies of statement of accounts for 2005-06, 2006-07 and 2007-08. These are seen in page 68 onwards of the appeal book. The details of the amounts paid by TATA to the appellant are also found therein. However the conclusion drawn by the adjudicating authority regarding collection of service tax by appellants is not borne out from these particulars of amounts paid by TATA Coffee etc. as found in page 94, 95, 106, 108 etc. of the appeal book. 6. In the light of the findings and conclusions herein above, and in particular, following the ratio of the case laws supra, we hold that the service rendered by the appellants are not in the nature of "Manpower Recruitment of Supply Agency Service‟. The impugned ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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