TMI Blog2023 (11) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... work undertaken by the appellant do not fall under the service category of Manpower Recruitment or Supply Agency Service and therefore, the impugned orders are without any merit and are set aside - appeal allowed. - MR. SOMESH ARORA, MEMBER (JUDICIAL) AND MR. C.L. MAHAR, MEMBER (TECHNICAL) Shri Jigar Shah Shri Amber Kumrawat, Advocates for the Appellant Shri Anoop Kumar Mudvel, Superintendent (AR) for the Respondent ORDER Since both the appeals are having similar facts therefore both the appeals are taken together for decision. 2. The above mentioned appellants are engaged by M/s. Rajhans Metals Pvt. Limited for undertaking activities of loading and unloading of scrap, sorting, breaking, cutting and casting of brass scrap into foundry and processing and packing of brass rods/ section post manufacturing activity. 3. As per the terms of contract/ agreement the appellants were engaged as job-workers of M/s. Rajhans Metal Pvt. Limited for carrying out processing of goods on behalf of their principal service recipient namely M/s. Rajhans Metal Pvt. Limited. The activity undertaken by the appellant was primarily for helping in manufacturing of various typ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Contract which are reproduced herein below:- Conditions for the Contractor 1 All the raw material and other all machineries, equipment for usage for the stores are to be provided by the company. 2 The raw materials and articles are given then as per their say the same would be got melted in the furnace and the mould be prepared and the billets are to be produced as per instructions given by the company. 3 The labour charges would be considered as per the net billets produced by the billets and for 1 Kilo the payment of Rs.12.5 paise is to be paid. 4 All the workmen who are engaged in this work would be treated as my workmen and the recruitment of men required for my contract work that is to be appointed in services for which I myself has to give them appointment and in this regard there would no responsibility of the company and I as the employer can engage whenever I think so or grant them leave and its entire responsibility would be upon me. There would be no responsibility in that regard upon the company. This is because these workmen would be treated as my own men and for engaging them in services or to retrench them for which if any industrial dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... une 2005 to June 2010 was considered by this Tribunal in Service Tax Appeal Nos. 2327 of 2011, 768 of 2011 and 10391 of 2013.In these appeals this Tribunal has passed a Final Order No. A/11947-11949/2019 dated 18.10.2019 whereby it was held that the appellant's activities amount to manufacture and does not amount to service of Manpower Recruitment Agency Service. Accordingly, the appeals were allowed. This Tribunal following various judgment namely, Ramesh C. Patel 2012 (25) STR 471 (Tri. Amd.), Jubilant Industries Limited 2013 (31) STR 181 (Tri. Del.) and Shiv Narayan Bansal 2013 (31) STR 747 held that contract between the appellant and M/s Nirma Limited is of contract manufacturing hence demand under manpower supply cannot be made. Concluding and operating portion of the order is reproduced below: From the above judgments the issue in hand is settled that when the contract between the service provider and service recipient is admittedly of contract manufacturing in such case demand under man power supply cannot be made. The appellant have vehemently argued on Revenue neutral situation on the ground that if at all the appellant is liable to pay service tax the same is ava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though there is no work. However, whenever there is work, the charges will be paid by the service recipient to the appellant as per the rates decided i.e. per piece basis. 5. As regards the responsibility and control, it is the appellant who has to bear all the responsibility of appointed workers according to the labour laws. With the aforesaid terms and conditions, it is clear that the appellant is carrying out the job work relating to manufacturing as per agreement entered with the facilities provided by the service recipient and the charges is also per piece basis. The entire control of workers deputed by the appellant for the job work is with the appellant only and the service recipient has no obligation as regards the number of workers, man-hour etc. for the job assigned to the appellant. In these terms of contract, we are of the clear view that contract is for job work carried out by the appellant for the service recipient. Therefore, there is no activity of providing the service of Manpower Recruitment or Supply Agency Service. The judgment relied upon by the appellant are directly on the issue. In the case of Sureel Enterprise Pvt. Limited vs. CCE ST., Ahmedabad 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so submitted the details of payment of excise duty of M/s. Nirma Ltd from PLA/cash. This prima facie show that it is a case of Revenue neutral and by not paying the service tax by the appellant the Government Exchequer is not at any loss, however, since, we have already decided the issue on merit, we are not giving our concluding opinion on Revenue Neutral position. The issue of jurisdiction raised by the appellant is also kept open. As per our above discussion the impugned order is not sustainable. Hence, the same is set aside. The appeals are allowed with consequential relief, if 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. 8. Following the above decisions of this Tribunal, we hold that work ..... X X X X Extracts X X X X X X X X Extracts X X X X
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