TMI Blog2023 (5) TMI 393X X X X Extracts X X X X X X X X Extracts X X X X ..... o the contractor only and would not have anything concerned with the workmen of the appellants and the appellants are free to work anywhere else and also undertake any work provided he remains responsible for execution of the specified jobs entrusted. A plethora of decisions by various benches of the Tribunal holding that where the contracts provide for payment of services on piece rate basis and where the supervision over the workmen employed remains with the contractors, where the employee-employer relationship exists between the contractor and his workmen supplied, the services are not classifiable under Manpower recruitment or Supply Agency service . Regarding Revenue's reliance on the decision rendered in ADIRAJ MANPOWER SERVICES PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE PUNE II [ 2022 (2) TMI 858 - SUPREME COURT] is not applicable since the same is distinguishable, as the facts involved are different and the issue involved therein was the appropriate classification of the services of the appellant whether under Job work or under Manpower Recruitment or Supply Agency service. The issue before the Court was whether the appellant is a Job Worker within th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loading/unloading of raw materials and finished goods. It appears that the appellants were paid for the services rendered to Livia on rate-contract basis. The main features of the agreement are as under:- a) The appellants have undertaken to provide specified jobs such as packing, loading and unloading, cleaning etc. at the premises of M/s. Livia [Preamble to the Agreement] b) In consideration for carrying out the specified jobs, M/s. Livia has agreed to pay the appellants on a rate-contract basis. Each item of the work performed by the appellants will be specified and consideration towards the same will be paid on a monthly basis on satisfactory completion of the jobs. (Clause 1) c) Furthermore, the supervision and control over the workmen also remains with the appellants (Clause 10) d) It is also agreed that M/s. Livia will have privity of contract with the appellants only (Clause 14). 1.3 In order to decide the issue involved in these appeals, it is necessary for us to analyze the terms of one of the written labour contract agreements entered into by the appellants with M/s. Livia, which is extracted below: - LABOUR CONTRACT AGREEMENT THIS AGREEMENT made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the co-ordinate CESTAT Bench had held that the impugned contract was to be considered as labour contract for supply of manpower. Similarly, in the case of Renu Singh Co. Vs. CCE 2007 (7) STR 397, it has been held by the CESTAT, Bangalore that supplying labourers for helping in mechanized loading of cement would not be classifiable under cargo handling service but under the category of manpower recruitment or supply service. Similarly, in Suhas Transports 2010 (19) STR 143 (Tri.-Ahmd.), the services of shifting/issue of raw materials, intermediate and consumables, shifting of finished/intermediate goods, shifting/issue of containers/packing materials, stickering etc. in the service receiver's premises was held to fall under Manpower recruitment or supply service as the true nature of contract is supply of manpower. 2.1 During the hearing and also in grounds of appeal, the learned Advocate has submitted that the issue involved in these appeals is no more res integra and the activities undertaken by these appellants are not taxable under Manpower recruitment or supply Agency service , as they are engaged in carrying out specified works such as packing, loading unloadi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 09 CESTAT, Chennai iii) K. Balakrishnan Anr. Vs. CGST CE, Madurai 2021 (9) TMI 181 CESTAT, Chennai iv) Arul Prakasam Ors. Vs. CGST CE, Chennai 2021 (8) TMI 1063 - CESTAT, Chennai v) G. Ramakrishnan Ors. Vs. CGST CE, Chennai 2019 (3) TMI 42 CESTAT, Chennai vi) S. Balasubramani Anr. Vs. CCE, Trichy 2019 (3) TMI 1392 CESTAT, Chennai vii) CCE ST Vs.Godavari Khore Cane Transport Co. P. Ltd. 2015 (3) TMI 483 Bombay HC. 2.2 It is also submitted by the learned Advocate that the demand of service tax under Manpower supply services is not sustainable as the final deliverable in a manpower supply agreement is supply of manpower. The contractual obligations would end once the manpower is mobilized and supplied. Where an agreement is for executing specific works without fixing any specific number of personnel, such agreements cannot be said to be for supply of manpower. The real test to identify the arrangement for manpower supply is to see which party holds the control and supervision over the personnel. In the instant case, the control and supervision over the workmen supplied clearly rests with the appellants and reliance in this regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the decision of the Hon'ble Apex court in the case of Adiraj Manpower Services Pvt. Ltd. Vs. CCE, Pune-II 2022 (58) GSTL 137 (S.C.), wherein services provided by the contractor for supply of skilled and unskilled manpower for carrying out activities like material handling, felting, pouring and supply of cast machine parts and painting within the factory premises and where consideration was settled as per the schedule of rates agreed upon on the basis of quantum of specific works performed as a contract for supply of labour. He has asserted that the demands raised are to be sustained. 4. We have considered the submissions made by both sides and also perused the records as available in all these appeals. 5.1 The main issue involved in all these appeals is whether the services rendered by the appellants would fall within the category of Manpower recruitment or supply Agency service or not? 5.2 A perusal of the labour contract entered into between the appellants and M/s. Livia indicate that M/s. Livia has agreed to pay the contractor on rate contract basis which will be determined from time to time on the basis of the nature of the work executed. Supervision and cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant whether under Job work or under Manpower Recruitment or Supply Agency service. The issue before the Court was whether the appellant is a Job Worker within the meaning of the exemption Notification dated 20.06.2012 or is merely a supplier of contract labour for work of the establishment. Hon'ble Apex court has concluded after going through the agreement that the appellant is not a job worker due to conspicuous absence of any reference to the following:- i) The nature of the process of work which has to be carried out by the appellants; ii) Provisions for maintaining (a) the quality of work; (b) the nature of the facilities utilized; or (c) the infrastructure deployed to generate the work; iii) The delivery schedule; iv) Specifications in regard to the work to be performed; and v) Consequences which ensue in the event of a breach of the contractual obligation. Whereas in all these appeals, the service providers were paid consideration on the basis of the quantum of work executed and not on the basis of number of labourers supplied. The services of the labourers were supervised by the appellants themselves or by their supervisors. Employee and employer r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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