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TMI Blog2023 (8) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... l dated 07.04.2014. The Adjudicating Authority vide his Order-in-Original dated 07.04.2014 dropped the proceedings. Being aggrieved by the Order-in-Original the revenue filled an appeal before the commissioner (Appeals), which was allowed by the Learned Commissioner (Appeals) except the setting aside penalty under Section 76. Being aggrieved by the said Order-in-Appeal the present appeal is filled by the appellant. 2. Shri Ambar Kumarawat Learned Counsel, appearing on behalf of the appellant submits that the Adjudicating Authority has rightly dropped the demand, Consideration the fact that the appellant have not provided the service of 'Manpower Recruitment and Supply Agency Services', whereas, the appellant have undertaken the job of unloading of scrap and sorting thereof. 2.1 He submits that the charges for the job were also collected on per Kg basis. Therefore, the appellant have not supplied the manpower to the recipient. Whereas, they have under taken a specific job irrespective of how many manpower or man hours involved in the job. He further submits that the controls of the man power was with the appellant and not transferred to the service recipient to qualify any service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the service recipient is not concern about the number of manpower deputed for the job, whereas the service recipient has assigned the job to the appellant only in respect of sorting, shifting and cleaning of container's materials. The control of the manpower in this fact is obviously with the appellant and not with the service recipient. 4.3 In this fact it is clear that the appellant have not provided the services of 'Manpower Supply or Recruitment Agency Services', this fact of the case is not under dispute as on this basis only the Adjudicating Authority has dropped the proceeding initiated in the show cause notice. This issue has come up time and again before this Tribunal. This Tribunal in the case of Ritesh Enterprises has taken the following view: 6. We have considered the submissions made at length by both sides and perused the records. The question that arises for consideration is whether the services rendered by the appellants are classifiable under the heading "manpower recruitment & supply agency"? 7. The definition of the manpower recruitment or supply agency under section 65(105) reads as under :- "any commercial concern engaged in providing any service, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ." 2. The company is at liberty to enter into parallel contract with any other party, if required. 3. The overall interest of the company should be safeguarded by you and loss/damage to the company due to your negligence/fault shall be recovered from you. 4. Proper accounts of the cargo/empty bags shall have to be furnished to us on completion of each operations. 5. You have to arrange round the clock work in the Plant and keep in touch with our officials, supervisors for better coordination in arrival of bulk prompt standardization etc., 6. The labour utilized by you for the handling operations under this work order shall be treated as your employees and the company shall have no responsibility whatsoever in this regard. You shall comply with all statutory requirements, Government regulations etc., and shall fully indemnify the company against any claims arising as a result of your failure to comply with such formalities. 7. Only 90 per cent of the charges at the maximum will be paid to you for the completed work on weekly basis. The balance shall be released on satisfactory completion of the work ship-wise/commodity-wise and on your submitting the relevant bills. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the records and the documents produced before us that they were intimated about the berthing of vessels at various ports and they were given a lump sum contract for cargo handling, i.e., loading and unloading of the goods into the said vessels. We perused the invoices issued by the appellant M/s. Karwar Dock & Port Labour Co-operative Society Ltd., which is annexed at Page Nos. 170 & 171 of the appeal memoranda and noted that the invoices are raised as "cargo handling for granite export loading of Indian rough granite blocks" for a lump sum amount, charged per Metric Tonne. 9. On a careful consideration of the above reproduced facts from the entire case papers, we find that the contract which has been given to the appellants is for the execution of the work of loading, unloading, bagging, stacking/destacking etc. In the entire records, we find that there is no whisper of supply manpower to the said M/s. Aspin Wall & Co. or to CWC or any other recipient of the services in both these appeals. As can be seen from the reproduced contracts and the invoices issued by the appellants that the entire essence of the contract was an execution of work as understood by the appellant and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, they fall within the definition of "manpower recruitment or supply agency" [section 65(68)] and are liable to service tax 11. It can be seen from the above reproduced portion of the Master Circular that it is in respect of supply of manpower which is engaged for specified period or for completion of particular projects or tasks. The clarification, is in case of supply of manpower, it can be seen that the clarification specifically reads that the agency agrees for use of services of an individual to another person for a consideration as supply of manpower. In the cases in hand, there is no agreement for utilization of services of an individual but a job/lump-sum work given to the appellants for execution. The said clarification issued by the Board would be appropriate in the case where services of manpower recruitment and supply agency, had been temporarily taken by the Business or the industrial association for supplying of manpower and may/may not be for execution of a specific work. We are of the considered view that the reliance placed by the learned SDR and the learned Commissioner on the circular will not carry the case of the revenue any further. 12. Accordingly in vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f any, in accordance with law. 6. In view of above decision of the Tribunal in the appellant's own case on the same issue, the issue in the present case is no longer res integra. The only difference in the present case and the case decided supra is the difference of period. However, there is no change in the facts and the law point, therefore, the Tribunal's decision given by Order dated 18.10.2019 is squarely applicable in the present case. Accordingly, the impugned orders are set aside. The appeals are allowed." 4.5 Same view was expressed by this Tribunal in another case of Nishkarsh Industrial Services, wherein this Tribunal has passed the following order: "4. We have carefully considered the submissions made by both the sides and perused the record. We find that in the present dispute whether the service is of Manpower Recruitment or Supply Agency Service or job work can be decided only on the basis of the agreement entered between service provider and service recipient. As per the agreement in the present case, the service recipient is having their factory and carried out various manufacturing activities. The present appellant was assigned job work related to man ..... X X X X Extracts X X X X X X X X Extracts X X X X
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