2023 (12) TMI 905 - AT - Service Tax

Levy of service tax - Manpower Recruitment Service - services of Loading of Scrap into Trucks for onward transportation rendered by the Appellant to their client - HELD THAT - The Appellant has collected the charges @ Rs. 429/- per trip. The loading was done by engaging Crane and helpers/operator. The Appellant was never obliged to supply labour or manpower. They were only required to perform a specific job of loading . Further, they were paid against the loading of truck which is at the rate of 'per trip' and not on the basis of 'number of manpower' deployed. Thus, the service rendered by the Appellant cannot be categorized as 'Manpower Recruitment Service'. The services of Loading of Scrap into Trucks for onward transportation rendered by the Appellant to their client are not liable to service tax under the category of 'Manpower Recruitment Service' - the demand confirmed in the impugned order is not sustainable. Since, the demand itself is not sustainable, the question of demanding interest and imposing penalty does not arise. Appeal allowed.

Summary

Issues:
The appeal challenges the demand of service tax under the category of 'Manpower Recruitment Service' for services of 'Loading of Scrap into Trucks' provided by the Appellant to their client.

Facts:
The Appellant, a transport and handling agent, provided loading services to a client without collecting service tax, believing the client was liable. An audit alleged a service tax liability of Rs. 2,74,797, which was confirmed in the Order-in-Original and upheld by the Commissioner (Appeals). The Appellant contended they were not obligated to supply labor or manpower, only to perform the specific job of loading.

Contentions:
The Appellant argued that they were paid per trip for loading trucks, not based on the number of manpower deployed, citing various case laws and a Board Circular emphasizing the distinction between manpower supply and job-specific work.

Decision:
The Tribunal found that the Appellant's services did not fall under 'Manpower Recruitment Service' as they were paid per trip for loading, not based on manpower deployed. Citing case laws, the Tribunal ruled in favor of the Appellant, setting aside the demand for service tax, interest, and penalty.

Significant Case Laws:
- Hemant V Deshmukh Vs CCE [2014 (35) STR 602 (Tri.- Mum.)]
- Divya Enterprises Vs CCE [2010(19) STR 370(Tri.- Bang)]
- Dhanashree Entreprises Vs CCE, [2017 (5)GSTL 212 (Tri. Mum.)]
- Shivshakti Enterprises Vs CCE., [2016 (41) STR 648 (Tri- Mum.)]
- S. S. Associates Vs CCE [2010(19) STR 438(Tri Bang.)]
- Samarth Sevabhavi Trust Vs CCE [2014 (36) STR 83 (Tri.-Mum.)]
- CCE Vs Samarth Sevabhavi Trust. [2016(41) STR 806(Bom)]
- CCE Vs Anmol Biscuits Ltd [(2022(62) GSTL 171(Tri.- Kol)]
- Ganesh Dutt Vs CCE [2017(4) GSTL 323(Tri.-Del.)]

Operative Part:
The Tribunal allowed the appeal, setting aside the impugned order due to the unsustainable nature of the demand for service tax, interest, and penalty.