TMI Blog2022 (5) TMI 909X X X X Extracts X X X X X X X X Extracts X X X X ..... [ 2017 (3) TMI 786 - CESTAT MUMBAI] . There is change of law with effect from 01.07.2012. It is submitted by the Ld. Counsel for appellants that appellants have obtained registration with the department and has started paying service tax. In similar matters for the period after June 2012, the Tribunal in K. BALAKRISHNAN AND N. RADHAKRISHNAN VERSUS COMMISSIONER OF GST CENTRAL EXCISE, MADURAI [ 2021 (9) TMI 181 - CESTAT CHENNAI] has remanded the matter to the adjudicating authority for re-computation of the service tax after granting cum tax benefit. Penalty - HELD THAT:- The issue being purely interpretational and the appellants having taken registration after 2012, the penalty imposed is unwarranted - In the remand proceedings, the adjudicating authority shall look into as to whether the demand of service tax is legal and proper and also the correctness of the quantification. The appeals for the period prior to June 2012 are allowed - for the period after June 2012, the matter is remanded to the adjudicating authority and penalties imposed are set aside - appeal allowed in part and part matter on remand. - Service Tax Appeal Nos.41317/2015,41821/2015 42396/2016, 42 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 50/2015 dt.18.05.2015 4,26,125/- 04/11 to 03/12 3 R.Athinarayanan ST/42396/2016 O-in-A No.107/2016 dt.23.09.2015 5,35,737/- 04/12 to 03/13 4 M.Arulprakasam ST/42397/2016 O-in-A No.108/2016 dt.23.09.2016 7,74,114/- 04/12 to 03/13 5 S.Subburayulu ST/40628/2018 O-in-A No.274/2017 dt.28.12.2017 2,16,328/- 04/12 to 03/13 3. Ld. Counsel Shri N. Viswanathan appeared and argued for the appellants. He submitted that the appellants had undertaken the activity in the nature of assembling etc. in the manufacture of tractors for M/s.TAFE. They had entered into contracts with TAFE on principal-to-principal basis using their own employees. The control and supervision of these employees was with them. Further, payment made by TAFE was on piece rate basis i.e. per tractor assembled/processed/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant in terms of CBEC Circular No.190/9/2015-ST 15.12.2015 clarifying the position under the negative list-based service tax regime with effect from 01.07.2012 which reads as under : 2. The matter has been examined. The nature of manpower supply service is quite distinct from the service of job work. The essential characteristics of manpower supply service are that the supplier provides manpower which is at the disposal and temporarily under effective control of the service recipient during the period of contract. Service providers accountability is only to the extent and quality of manpower. Deployment of manpower normally rests with the service recipient. The value of service has a direct correlation to manpower deployed, i.e., manpower deployed multiplied by the rate. In other words, manpower supplier will charge for supply of manpower even if manpower remains idle. 2.1 On the other hand, the essential characteristics of job work service are that service provider is assigned a job e.g. fabrication/stitching, labeling etc. of garments in case of apparel. Service provider is accountable for the job he undertakes. It is for the service provider to decide how he depl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 019 dated 19.02.2019 where the period involved is prior to June 2012 (name of the appellants are : G. Ramakrishnan, K. Balakrishnan, P. Kannusamy, M. Arulprakasam, R. Athinarayanan and S. Subburayalu), the Tribunal had set aside the demand relying upon the decision in the case of Bhagyashree Enterprises (supra). The observations made in the said final order read as under : On perusal of the preamble of the agreement itself it is seen that appellant is an independent contractor appointed for executing work that are entrusted to him by TAFE. So also, at clause 3 as well as clause 7, it is stipulated that appellant shall be responsible for the defect in executing the works. Appellant executes the works along with other workers and merely because he has engaged other workers in executing the work, it cannot be said that he is the supplier of man power. In clause 11 of the agreement, it is stated that the company will have privity of contract with the contractor only and will give instructions only to the appellant/contractor and has nothing to do with the conditions of employment of the workers who work with appellant. Reliance placed by the department in clause 14, in our view, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agraphs of the above said final order are reproduced as under : 7. Following the same, we are of the view that the demand prior to 2012 cannot sustain and requires to be set aside which we hereby do. 8. The ld. Counsel has submitted that they are not contesting the liability after 2012. It is also argued by him that they have discharged the service tax liability and the matter may be remanded to verify the same and also to look into the issue of cum-tax benefit. On perusal of the impugned order, it is seen that though the appellant has raised this contention, the same has not been considered by the authorities below. The matter with regard to the period after 2012 is remanded to the adjudicating authority who shall determine afresh the duty demand for the period after 1.7.2012 and examine whether service tax on these services has been discharged. The cum-tax benefit contention shall also be looked into. With regard to the penalty imposed after the period 2012, we are of the opinion that being an interpretational issue the appellant cannot be saddled with the guilt of intention to evade tax. Further, there is no allegation or finding of any positive act on the part of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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