TMI Blog2023 (11) TMI 372X X X X Extracts X X X X X X X X Extracts X X X X ..... under the superintendence and control of the service recipient. Thus it is to emphasize that for the activity to be included in the Manpower Recruitment or Supply Agency Service then the control over the manpower should be with the recipient of the service. The service rendered by the appellant to M/s. GMDC does not fall under the category of Manpower Recruitment and Supply Agency Service - there are no merit in the order in original in this regard. Demand of service tax under Business Auxiliary Service - HELD THAT:- The facts of the matter are that the appellant have been undertaking work of calcination of raw bauxite into calcined bauxite at their own factory premises. The M/s. Saurashtra Calcined Bauxite and Allied Industries Ltd. (SCABAL) will bring raw bauxite to the appellant's factory premises and the appellant using this in their factory/plant with his own manpower, converted the raw bauxite into calcined bauxite. For the said process of calcination of bauxite, the appellant was paid by M/s. SCABAL at a fixed section per Metric Ton basis - conversion of raw bauxite into calcinated bauxite resulted into emergence of a new substance classifiable under a separate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,586/- under the category of Manpower Recruitment and Supply Agency Service and amount of Rs. 36,44,228/- under Business Auxiliary Services and an amount of Rs. 947/- under renting of Immovable Property has been demanded invoking the provisions of section 73 of Finance Act, 1994. The other provisions with regard to interest and penalty under Sections 75, 76, 77 and 78 of the Finance Act, 1994 has also been invoked. The matter got adjudicated vide impugned order-in-original No. 111-COMMR-2013 dated 20.09.2013. The impugned order-in-original has confirmed all the charges as raised in the show cause notice. So far as the demand of Rs. 945/- under Renting of Immovable Property is concerned, the same was accepted by the appellant at the level of adjudication. The appellant are before us challenging the levy of service tax primarily under the category of Manpower Recruitment and Supply Agency Service and Business Auxiliary Services. 2. The Learned advocate appearing for the appellant has argued that their activity fall under the category of Manpower Recruitment or Supply Agency Service only when there is contract for supply of manpower temporarily or otherwise. In the present case, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contract entered between two parties are for supply of manpower. It has been the contention of the learned advocate that in the present case, the work order provided by the GMDC nowhere mentions that appellant are engaged for Recruitment and supply of manpower on behalf of M/s. GMDC. It has been further mentioned that entire contract and work orders were issued for performing a specific task such as transportation, operation and maintenance of the calcinations plant for which payment has been made on per MT and not on per man-hour basis. Thus, it has been pleaded that entire demand confirmed in the impugned order-in-original under the category of Manpower Recruitment or Supply Agency Service is without any legal basis. 4. Learned advocate has further taken us through the relevant findings of the impugned order-in-original and drawn out attention to the findings where the Adjudicating Authority had mentioned that appellant had full and effective control over the manpower employed by them and M/s. GMDC to whom they provided the manpower had no control over them. Learned advocate has mentioned that learned Adjudicating Authority has failed to interpret the law correctly as the afor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has further been added that word manufacture has defined under Central Excise Act includes within its scope any process incidental or ancillary to completion of manufactured product, provided as long as the process results into emergence of new and identifiable product having distinctive name, character or use . Similarly, Section 2(d) of Central Excise Act, 1944 defines excisable goods means goods specified in the first schedule and the second schedule to the Central Excise Tariff Act, 1985 as being subject to a duty of excise. It has been the contention of the learned advocate that since Chapter heading for the raw bauxite and calcined bauxite are different, therefore, the process undertaken by the appellant for conversion of the raw bauxite into calcinated bauxite amounts to manufacture of a new product. At the same time, it has been emphasized that SCABEL has cleared the calcined bauxite on payment of duty and therefore no service tax can be levied under the category of Business Auxiliary Service on this activity also. Learned advocate has also relied upon certain case laws which are as under:- (a) Neo Structo Construction Ltd. v. CCE, 2010 (19) STR 361 (b) Guja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, it is wrong on the part of the department to allege the suppression or mis-declaration of facts with an intention to evade payment of service tax. Learned advocate relied upon the following decisions in this regard:- (a) NRC Ltd. Vs CCE, 2007 (5) STR 308 (b) Town Hall Committee Vs Commissioner, 2007 (8) STR 170 (c) Binlas Suplux Limited Vs CCE, 2007 (7) STR 561 (d) Supreme Court in the case of Continental Foundation Vs CCE, 2007 (216) ELT 177 (SC) (e) Tamil Nadu Housing Board Vs Collector, 1994 (74) ELT 9 (SC) (f) CCE Vs Chemphar Drugs, 1989 (40) ELT 276 (SC). (g) Jai Prakash Industries Limited Vs CCE, 2002 (146) ELT 481 (SC) 9. We have also heard Shri Tara Prakash, learned Deputy Commissioner (AR) who has reiterated the findings given in the order-in-original. 10. We have heard both the sides. Before proceeding further in the matter to decide whether the appellant have provided service of Manpower Recruitment or Supply Agency Service to M/s. GMDC, it will be proper to reproduce the relevant paras of the work order dated 10.10.2007 which have been entered into by the appellant and M/s. GMDC. The relevant part of the work order are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Recruitment or Supply Agency Service as provided under Section 65 (68) of the Finance Act, 1994:- Manpower recruitment or supply agency means any commercial concern engaged in providing any services, directly or indirectly, in any manner for recruitment or supply of manpower, temporarily or otherwise to a client. It will also be proper to reproduce the definition of Manpower Recruitment or Supply Agency Service as provide under Rule 2(g) of the Service Tax Rule, 1994 which is reproduced as under:- supply of manpower means supply of manpower, temporarily or otherwise, to another person to work under his superintendence or control. The perusal of the above mentioned work order and the definitions as given above, it is apparent that for Manpower Recruitment or Supply Agency Service is to supply of manpower temporarily or otherwise to another person, it is necessary that the service provider will only recruit and supply the manpower to the service recipient and the person so providers will be working under the superintendence and control of the service recipient. Thus it is to emphasize that for the activity to be included in the Manpower Recruitment or Supply Ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not fall under the category of Manpower Recruitment and Supply Agency Service and therefore, we find no merit in the order in original in this regard. 12. With regard to confirmation of demand service tax under Business Auxiliary Service, the facts of the matter are that the appellant have been undertaking work of calcination of raw bauxite into calcined bauxite at their own factory premises. The M/s. Saurashtra Calcined Bauxite and Allied Industries Ltd. (SCABAL) will bring raw bauxite to the appellant's factory premises and the appellant using this in their factory/plant with his own manpower, converted the raw bauxite into calcined bauxite. For the said process of calcination of bauxite, the appellant was paid by M/s. SCABAL at a fixed section per Metric Ton basis. We also find from the record of the appeal that service recipient namely M/s. SCABAL have been clearing the calcinated bauxite from their premises on payment of proper central excise duty. We take note of the fact that since the Chapter headings for both, raw bauxite and calcinated bauxite are different, while the raw bauxite falls under chapter heading 20600010 and the calcinate bauxite is classifiable under c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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