TMI Blog2023 (5) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... cting and remitting provident fund and ESI contributions and also for payment of bonus and other dues, and also shall require to maintain records and registers, obtain any license or registration required by law for supply of workmen/labour - All these conditions will indicate that the consideration paid for the services is depending upon the number of people deployed in the factory of M/s. Godrej by the appellant. The service charges paid are computed on the basis of the wages paid by the appellant plus pre-determined commission. Even the scrutiny of the bill raised by the appellant indicates that the charges are on the basis of number of workmen deployed. The tenor of the contract clearly indicate that the Agreement entered into by the appellant s with M/s. Godrej Household Products Ltd., Karaikal, is a Labour Supply Contract and so the services rendered would fall under Manpower Recruitment or Supply Agency service - demand of tax upheld. The appellant s reliance on the decisions rendered by the Tribunal in the case of DIVYA ENTERPRISES VERSUS COMMISSIONER OF CENTRAL EXCISE, MANGALORE [ 2009 (12) TMI 155 - CESTAT, BANGALORE] and RITESH ENTERPRISES VERSUS COMMISSIONER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nished goods as required by the management and housekeeping in and around the factory, maintenance of garden and canteen and maintenance of machineries and other equipment. He has submitted that his work is not mere supply of manpower but includes specific works along with responsibility to execute the same. He has also submitted that various activities undertaken by them are in connection with production/manufacture of various goods by M/s. Godrej which are incidental to such manufacturing activities and as such would be more appropriately covered under Business Auxiliary Service (BAS). The demand raised for service tax under wrong category of taxable service is not sustainable in law. It is also put forth that BAS service provided is exempted from payment of service tax if the Principal is paying appropriate duty of excise on the finished goods in terms of Notification No. 8/2005-ST dated 01.03.2005. The appellant being a small businessman and not well versant with the statutory provisions of service tax and as he was under the bonafide belief that the services rendered by him would not be liable to service tax. 2.2 It has been further submitted that as per the agreement, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... marth Sevabhai Trust 2016 (41) STR 806 (Bom.) iii) Ritesh Enterprises Vs. CCE, Bangalore 2010 (18) STR 17 (Tri.-Bang.) 3. Learned DR Shri M. Ambe representing the Revenue has contended that the services rendered by the appellant are appropriately classifiable as Manpower Recruitment or supply Agency service. Reiterating the findings of the Lower authorities, he has contended that the appellant was paid on the basis of number of people supplied to M/s. Godrej that the services rendered by the appellant are covered under manpower supply agency service and the demands are sustainable. 4. We have considered the submissions made by both the sides. 5.1 We have carefully perused the agreement entered into by the appellant with M/s. Godrej and also copies of the sample invoices as available on records. Some of the relevant conditions from the agreement between the appellant and M/s. Godrej are extracted as under:- Now it is hereby agreed by and between the parties hereto as follows:- .. . . 7) The contractor shall provide to his personnel, at his own cost, uniforms, shoes, monsoon wear, and any other essential equipment and tools such as brooms, scr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ployees employed by it at the company premises. 22) It is clearly agreed and understood that all the persons provided by the contractor shall be employees of the contractor and not of the company and all disputes between the contractor and his people shall have no bearing on the company and the company will not be responsible for any claims made by such persons and shall not be liable to pay any amount to any employee/ex-employee of the contractor and in case of such claims made by the employees of the contractor against the company, the contractor shall indemnify the company to the extent. The contractors are full responsible for disciplined behavior of his workmen. 5.2 The scope of work for service (Annexure-A) is also reproduced as under:- 1. Unloading of RM/PM and other materials from the parties. Loading of finished goods and other materials as required by the management to do. 2. Housekeeping in and around factory, maintaining the garden and canteen inside the factory and maintaining the machineries and other equipment. The wage for the quantum of the work done as given below: WAGES PER SHT BASIC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure, we find it is necessary to refer to the decision of the Hon ble Supreme Court in the case of Super Poly Fabriks Ltd. Vs. CCE, Punjab - 2008 (10) STR 545 (S.C.), which laid down the ratio as under:- There cannot be any doubt whatsoever that a document has to be read as a whole. The purport and object with which the parties thereto entered into a contract ought to be ascertained only from the terms and conditions thereof. Neither the nomenclature of the document nor any particular activity undertaken by the parties to the contract would be decisive. We find that the tenor of the contract clearly indicate that the Agreement entered into by the appellant s with M/s. Godrej Household Products Ltd., Karaikal, is a Labour Supply Contract and so the services rendered would fall under Manpower Recruitment or Supply Agency service. The appellant s reliance on the decisions rendered by the Tribunal in the case of Divya Enterprises Vs. CCE, Mangalore (supra) and Ritesh Enterprises Vs. CCE, Bangalore (supra) are not applicable to the facts of the case as the contracts involved there in were for execution of work on piece rate basis. 5.6. We find that M/s. Godrej is computing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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