TMI Blog2024 (3) TMI 407X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellant Shri Sanjay Kumar, Superintendent (AR) for the Respondent ORDER The brief facts of the matter are that the appellant has been undertaking certain activities in the factory of M/s. Intricast Pvt. Limited wherein he was deputing certain manpower for undertaking activities such as preparing and planning for melting, doing melting of required material in furnace, pouring of liquid metal in temperature backed shell, deliver poured shell to knock out department. The department entertained a view that the activity undertaken by the appellant falls under the category of Manpower Recruitment or Supply Agency Service and since no service tax has been discharged by the appellant, a show cause notice dated 14.10.2013 demanding service tax of Rs. 5,30,579/- under Section 73(1) of Finance Act, 1994 was issued to the appellant. The interest and penal provisions etc. were also invoked in the impugned show cause notice. The matter reached up to the level of Commissioner (Appeals) where the Commissioner (Appeals) vide impugned order-in-appeal dated 29.08.2016 did not provide any relief to the appellant and therefore, they are before us against the above mentioned order-in-appeal. 2. Le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aking of the injected pattern should be done by wax as per the target and all of them should be kept safely in the right place, housekeeping should be informed during the work. 2. Work order price detail:- The work done by your department is a part of the company's scheduled production process and You will be paid for this work order at the rate of Rupees 2.24 (Rupees Two and Twenty Four Paisa) per kg on the quantity of castings produced and dispatched per month through all such combined processes. Among them, TDS as per the rules of Income Tax and any amount which is deductible 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 comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re reproduced below :- This AGREEMENT made at Pune on this 1st day of April month of the year Two Thousand Seven BETWEEN Kalyani Lemmerz Limited incorporated under the Companies Act, 1956 having its office and chief place of business at Kuruli Chakan (hereinafter referred, to as the Company ) represented by Kalyani Lemmerz Limited, on the one part' and M/s. Dhanashree Enterprises, a represented by Proprietor (hereinafter referred to as Contractor ) of the other part. WHEREAS the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Employees Provident Fund and Misc. Provisions Act 1952, the E.S.I. Act, 1948:' and such other statutory encasements, rules and regulations laid down by the Govt. or local body in force/coming into force which may apply to this agreement and any liability on account of non- compliance or violation thereof shall be the contractor's responsibility. (e) The workmen employed by the contractor 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terprises Sonawane Indl. (supra) wherein identically worded agreement was existing that too with the same service recipient i.e. Kalyani. Hence the identical facts were involved. Therefore the ratio of that decision is squarely applicable in the facts of the present case also. As per our above discussion, we find 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll 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 and return duplicate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 and conditions thereof. Neither the nomenclature of the document nor any particular activity undertaken by the parties to the contract w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anpower. 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 Aurangabad vs Shri Samarth Sevabhavi Trust 5. The question between the parties is whether the services would fall within the definition of Manpower Recruitment or Supply Agency Services . The definition of this term is mentioned in clause (105)(k) r.w. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 Manpower Recruitment or Supply Agency Services. 2. After hearing both sides, we find that the appeal itself can be disposed of at this stage. Therefore, after granting waiver of the requirement of pre-deposit of Service Tax, interest and penalties, we take the appeal itself for disposal. 3. Brief facts of the case are tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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