TMI Blog2019 (5) TMI 1459X X X X Extracts X X X X X X X X Extracts X X X X ..... 11-DB - A/10701-10704/2019 - Dated:- 16-4-2019 - MR. RAMESH NAIR, MEMBER (JUDICIAL) And MR. RAJU, MEMBER (TECHNICAL) Sh. S.R. Dixit, Advocate for the Appellant Shri. G. Jha Authorized Representative for the Respondent ORDER PER: RAMESH NAIR Briefly stated the facts of the case are that both the appellants are sister concerns under the Mehta Group of Companies and are engaged in the cement manufacturing business. During the course of audit of both the companies it was noticed that for the period 01.07.2006 to 31.03.2007, both the companies were sharing various expenses incurred in their factories on the basis of sharing formula depending upon turnov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lls Ltd 2014 (34) STR 610 (Tri.-Ahmd.) Spirax Marshall P. Ltd 2016 (44) STR 310 (Tri. Mumbai) Vidarbha Iron Steel Co. Ltd 2016 (45) STR J204 (SC) Larsen Toubro Ltd 2016 (41) STR 542 (Tri. Mumbai) 3. Sh. G. Jha Ld. Superintendent (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order. 4. Heard both the sides and perused the records. We find that only issue to be decided by us is that whether the common facility such as staff etc. used on sharing basis by two sister concerns of the same group companies is liable for service tax under man power recruitment and supply agency service. This issue is no longer res integra as in the simil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the work of both the companies. The service is by the personnel to the two companies in question and not one company providing service to the other company. So there is no taxable activity on the part of the appellant to the other to be taxed under manpower supply service taxable as 65(105)(k) and therefore, the stay petition as well as appeals are allowed. The fact that payment to employee is made by one company and there is inter-company payment of the share of the cost of the employees utilised by the other company cannot be interpreted to mean one company was providing service to the other. We accordingly set aside the impugned order and allow the appeal. Stay petition also gets disposed of. 11. No other con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Paramount Communication. As such, it has to be concluded that the entire order is a mistake, requiring rectification of same. The point made out by learned AR that such rectification can be done only to small clerical mistake in the order, cannot be appreciated inasmuch as in the present case the entire order is a clerical mistake. The mistakes required to be rectified does not depend upon the length of said mistake or does not relate to one or two words in the order. When the entire order which got issued was not relatable to the matter under dispute, notwithstanding the reference numbers in the preamble of the same, it has to be held as if the entire order was a mistake. In fact such provisions for correction of such mistakes in the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tated separately would be held as the correct order passed in the appeal of M/s. Paramount Communication Wire and Cables Ltd. being Appeal No. Service Tax/1459/2011. Earlier order dated 5-6-2012 is withdrawn. ROM is allowed. In the case of Gujarat State Fertilizer and Chemicals Ltd, hon ble Supreme Court dealing with the identical issue: 15. We have considered the aforesaid submissions in the light of the material placed on record. We shall advert to the second aspect namely, as to whether the arrangement between GSFC and GACL amounts to providing any services by GSFC to GACL and 50% incineration expenses incurred would constitute charges for providing such services. There is no dispute about the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ature of joint venture between two of them and the parties have simply agreed to share the expenditure. The payment which is made by GACL to GSFC is the share of GACL which is payable to GSFC. By no stretch of imagination, it can be treated as common service provided by GSFC to GACL for which it is charging GACL. 16. We are, thus, of the opinion that the second ingredient has not been established in the present case and the question of service tax does not arise. In view thereof, it is not necessary to go into the question as to whether receiving of HCN through the said common pipeline in the tank which is setup by the GFSC and GACL amounts to storage or not and we leave the said question open. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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