TMI Blog2023 (9) TMI 652X X X X Extracts X X X X X X X X Extracts X X X X ..... um of man power - the appellant have not provided the Man Power Recruitment or Supply Agency Service whereas they have provided the service of Business Auxiliary Service i.e. production or processing on behalf of their clients. In view of the various judgments which is on the identical issue and the facts involved in the present case, the Tribunal/ High Court has taken a consistent view that when the agreement between the service provider and recipient is for a particular job and not for supply of man power, the activity cannot be classified under Man Power Recruitment or Supply Agency Service . In respect of identically placed assessee Shri Rajesh C. Pipadia, the learned Commissioner (appeals) has dropped the demand vide Order No. OIA No. RJT-EXCUS-000-APP-132- 14-15 dated 30.07.2014 and the said order was accepted by the Revenue and no further appeal was filed. This order is also a strong persuasive value in the present case for the reason that in this case also the identical activity was carried out by the assessee for the same service recipient M/s Intricast Private Limited. The demand in the present case is not sustainable. Accordingly, the impugned order is set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant have not provided the Man Power Recruitment or Supply Agency Service to M/s Intricast Private Limited. He placed reliance on the following judgments: Dhanashree Enterprise 2017 (5) GSTL 212 (T. Mum) Talala Taluka Sahakari Khand Udyog Mandali Ltd. 2022 (12) TMI 468 Ritesh Enterprise 2010 (18) STR 17 (Tri.-Bang.) K. Damodarareddy 2010 (190 STR (593) (Tri. Bang.) Divya Enterprise 2010 (9) STR 370 (Tri. Bang.) S.S. Associates 2010 (19) STR 438 (Tri. Bang.) CCE vs Samarth Sevabhavi Trust 2016 (41) STR 806 (Bom.) Seven Hills Construction 2013 (31) STR 611 J22 (Tri. Mum.) Commr. Vs Seven Hills Construction 2017 (7) GSTL J122 (Bom.) He further submits that the appellate Commissioner himself has decided one appeal of M/s Rajesh C. Pipadia in his favour against the Revenue s appeal and this order being OIA No. RJT-EXCUS-000-APP-132-14-15 dated 30.07.2014 in the case of M/s Rajesh C. Pipadia who was also an individual who performed the same activities as performed by the appellant herein for M/s Intricast Private Limited. The said Order-in- Original has been accepted by the Revenue and therefore, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uctible under the law of the government prevailing at that time will be deducted. The price can be increased or decreased if necessary before the time limit with the agreement of both the company and you. Terms and Conditions of Work Order 1 . 2 .. 3. The labourers, supervisors and any other persons hired by you for the above work shall be your employees/contractors and the company shall not have any responsibility for the same. You will have to comply with all the statutory provisions of the Government and your obligations like payment of provident fund, insurance of employees and other provisions and the company will be fully reserved from any liability in the same. 4. The necessary tools and materials for the work of wax repairing and assembly department will be provided by the company and they will have to be used as per the prescribed standards. 5. According to this work order, you, your hired workers, supervisors and any other persons will not have owner and worker relationship with the owner of our organization. 6 . 7 .. 8 .. 9 .. 10. In case of rejection due to your negligence, the cost of that material will be de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company required a contractor for carrying out the work in the premises of the company, which is listed in Annexure A . AND WHEREAS the company accepted the offer of the contractor and in pursuance of the discussions, trial operations were carried out between the period 1st April, 2007 to 31st March, 2008. AND WHEREAS after discussions and trial operations the company and the contractor agreed to enter into a contract on the same terms and conditions mentioned hereinafter. NOW THESE PRESENT WITNESSETH AND IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS :- 1] NATURE AND SCOPE OF WORK : (a) The contractor shall perform the work listed in the Annexure A which is part of this agreement and as directed by the concerned officers of the company from time-to-time. (b) The contractor will be available for the aforesaid Piece work on all working days/shifts and even on holidays if required. He will be carrying out jobs on job order basis and job charges will be paid on piece rate basis. (c) The contractor will be accountable for required quantum of units to produced within the span of time as be scheduled. He shall ensure that workmen e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontractor shall be his employees and the company shall be in no way responsible or liable for their wages, salaries, bonus, gratuity, and other allowances, if any. (f) The contractor shall regularly make payment for P.F. Family Pension, Employees State Insurance Contribution, Deposit Linked Insurance Scheme and all other statutory dues that may become, due and payable by the contractor for the labour employed by him and maintain all such records as may be statutorily required and present the same to the officers of the company when required. (g) The contractor shall during the term of this agreement, at his cost insure all workmen in his employment and connected with the execution of this contract against all accidents fatal or otherwise, injuries that may be suffered by them and all claims arising there from shall be concluded by the contractor directly. (h) The contract labour and other supervisory staff engaged by Party No. 2 shall conduct themselves properly while on the premises of the party No. 1 and shall maintain absolute discipline during working hours and Party No. 2 shall ensure that the labour employed by him shall maintain discipline and proper conduct d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that since the department could not establish that the service provided by the appellant are of supply of manpower, the demand on the said service is not sustainable. We therefore, set aside the impugned order and allow the appeals. Ritesh enterprises vs CCE Bangalore 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, directly or indirectly, in any manner for recruitment or supply of manpower, temporarily or otherwise, to a client. The taxable service liable for Service tax is also defined under Section 65(105)(K) which is as under : any service provided to a client, by a manpower recruitment or supply agency in relation to the recruitment or supply of manpower, temporarily or otherwise, in any manner. From the plain reading of the above reproduced definitions in the Financ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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% 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 shipwise/commodity wise and on your submitting the relevant bills. The company shall deduct 5% from your bills towards security deposit and the same shall be kept in your running account till a total security of 1.5 lakhs is maintained. 8. The Company reserves its right to terminate this work order without assigning any reason by giving you one week s notice. Please sign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a 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 the recipient of the services. We find that the Hon ble Supreme Court in the case of Super Poly Fabriks Ltd. v. CCE, Punjab (supra) in paragraph 8 has specifically laid down the ratio which is 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r tasks. The clarification, is in case of supply of man power, 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 man power recruitment 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 view of the above findings, we are of the view that the impugned orders are liable to be set aside and we do so. The appeals are allowed with consequential relief if any. Since we have disposed of the appeals on merits itself, no findings are recorded on other submissions made by both sides in these appeals. CCE Auran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 9. In view of the above, it is clear that no manpower has been supplied by the respondents to the sugar factory to constitute supply of manpower. This Court had an occasion to deal with the similar issue, as is involved in these appeals, in Central Excise Appeal No. 19 of 2014, and this Court by order dated 27-1-2015 [2015 (38) S.T.R. 468 (Bom.)] has dismissed the said appeal. 10. In view of the above discussion, in our view, the appeals are devoid of any merits. The judgment and orders, which are impugned in these appeals, passed by the learned Member of the Appellate Tribunal calls for no interference. The appeals are hereby dismissed. No costs. Seven Hills Construction vs CST Nagpur The appellants are in appeal along with a stay application against the impugned order wherein the Service Tax demand of Rs. 1,68,54,852/- has been confirmed against the appellant along with interest and various penalties under the Finance Act, 1994 under the category of M ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
