TMI Blog2023 (6) TMI 592X X X X Extracts X X X X X X X X Extracts X X X X ..... was considered by the Tribunal in the case of COMMISSIONER OF SERVICE TAX-II, KOLKATA VERSUS M/S. ANMOL BISCUITS LIMITED [ 2022 (3) TMI 105 - CESTAT KOLKATA ] wherein the Tribunal held In the given case since the contractors are being paid on the basis of quantity packed and not on the basis of number of persons deployed, the same cannot partake the nature of Manpower Supply Service - In the case of DIVYA ENTERPRISES VERSUS COMMISSIONER OF CENTRAL EXCISE, MANGALORE [ 2009 (12) TMI 155 - CESTAT, BANGALORE ] , the Tribunal observed that essence of the contract was for execution of work and not for supply of manpower. After scrutiny of the work orders, the Tribunal observed that the work was for completion of particular projects or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtment that the appellant provided MRSAS for the work of water cooling system pipeline laying to M/s.BHEL, Trichy during the period January 2011 to March 2011 and received payment from M/s.BHEL Trichy. The appellant did not discharge service tax on the payments received from M/s.BHEL, Trichy and was liable to pay service tax of Rs.66,642/- under the category of MRSAS. Show cause notice was issued to the appellant demanding service tax along with interest and for imposing penalty. After due process of law, the original authority confirmed the demand along with interest and imposed penalty. On appeal, Commissioner (Appeals) upheld the same. Hence the appeal. 3. Brief facts in Appeal No.ST/42353/2013 are that on verification of accounts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not covered under the category of MRSA Service. 5. The facts with regard to appellant M/s.Anand Contractors is that the nature of activity of the appellant as per the work order of M/s.BHEL is for chemical analysis and testing of ferrous and non-ferrous samples and various coatings and the metals etc. The appellant provided man power with necessary tools for the work of testing and chemical analysis and preparation of samples in R D lab. It is submitted by the Ld. Counsel that the amount received is per unit quantity basis and not per person basis. For the same reason, the activity does not fall within the levy of service tax. To support the arguments, Ld. Counsel relied upon the judgments in the case of Ritesh Enterprises Vs CCE B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot therefore sustain. 7. As an alternative argument, it was submitted that in any case, the activity will not fall under MRSAS, but may come under BAS and for this reason, the demand cannot sustain. To support this alternate contention, the circular issued by Tax Research Unit dated 23.11.2009 was referred to by the Ld. Counsel for appellant. It is clarified that when member-manufacturer engaged contractors as job workers in their factory premises and paid manufacturing / job charges against bills raised for fabricating work carried out by the job worker, the activity cannot fall under MRSAS. But would be covered under Business Auxiliary Service (BAS). 8. Ld. Counsel submitted that demand in the case of M/s. Anand Contractors is r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g bill. (3) In addition to above, condition covering the contract are enclosed as annexure A and general conditions of contract are enclosed as annexure B These annexure were also part of the tender document issued in the enquiry and please ensure compliance to all the conditions. 11.1. Page 26 is a document with reference to another work order which reads as under : With reference to the above Order placed on for us for Labour Assistance in Production and Shipping Activities in Valves, we are enclosing the following invoice and request you to kindly forward to Finance / Valves for Payment. 11.2. The invoice enclosed in page 26 shows that the payment is made on tonnage basis. 12. It is the case of the department that ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Appeal No. ST/565 566/12, wherein vide Final Order dated 10-7-2017 it was held that the department could not establish that the service provided by the Appellant are of supply of manpower. In the instant case also we find that the department has not brought any evidence in contrary to prove that the services provided by the contractors to the Respondent are in the nature of Manpower Supply. 14. In the case of Divya Enterprises (supra), the Tribunal observed that essence of the contract was for execution of work and not for supply of manpower. After scrutiny of the work orders, the Tribunal observed that the work was for completion of particular projects or tasks and therefore will not fall within the definition of MRSA Service . ..... X X X X Extracts X X X X X X X X Extracts X X X X
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