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TMI Blog2009 (12) TMI 155X X X X Extracts X X X X X X X X Extracts X X X X ..... for execution. The said clarification issued by the Board would be appropriate in the case where services of manpower recruitment & supply agency, had been temporarily taken by the Business or the industrial association for supplying of manpower and may not be for execution of a specific work. Thus, we are of the view that the impugned order is liable to be set aside and we do so. The appeal is allowed with consequential relief if any. - ST/STAY/379/2009; ST/628/2009 - 1450/2009 - Dated:- 3-12-2009 - M.V. RAVINDRAN, JUDICIAL MEMBER AND P. KARTHIKEYAN, TECHNICAL MEMBER M.S. Nagaraja for the Appellant. M. Vivekananada for the Respondent. ORDER M.V. Ravindran, Judicial Member - This stay application and appeal are filed by the appellant against the impugned Order-in-Appeal No. 176/2009 dated 8-5-2009. 2. We find that the issue involved in this case being in a narrow compass, hence stay application is allowed and appeal itself is taken up for disposal. 3. The relevant facts that arise for consideration are the appellants herein had entered into a contract with M/s. Aspin Wall Co. for the purpose of rendering services of loading, standardization, unloading, stack ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plier agrees for use of the services of an individual employed by him to another person for a consideration. The terms of the individual's employment may be laid down in a formal contract or letter of appointment or on a less formal basis. What is relevant is that the staff are not contractually employed by the recipient but come under his direction. 22.4 Service tax is to be charged on the full amount of consideration for the supply of manpower, whether full-time or part-time. The value includes recovery of staff costs from the recipient e.g. salary and other contributions. Even if the arrangement does not involve the recipient paying these staff costs to the supplier (because the salary is paid directly to the individual or the contributions are paid to the respective authority) these amounts are still part of the consideration and hence form part of the gross amount. 22.5 Gem and Jewellery Export Promotion Council have represented seeking clarification that hiring of skilled artisans for making jewellery does not constitute supply of manpower taxable under 'manpower recruitment services'. When the artisans are hired by any organization or business, directly, without engaging ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k executed by them under each head of work and the rates specified for each item of works in the work order. It is his submission that the findings of the learned adjudicating authority relying upon the Board Circular dated 27-7-2005 to conclude that the staff/labourers are employees of the appellant and the employer and employee relation exists between the manpower supply agency and labourers and not between the labourers and recipients of services. (Aspin Wall Co. and CWC), hence the service is of manpower, is erroneous on the ground that the work order do not contain any reference, whatsoever, for supply of manpower. The pith and substance of the Works Orders was "execution of work". The contractors i.e., appellants herein had executed the work in terms of work orders he would rely upon the following decisions for the proposition that the essence or substance in a contract is material for determination of the nature of transaction : (a) Super Poly Fabriks Ltd. v. CCE [2008] 14 STT 249 (SC). (b) State of Andhra Pradesh v. Kone Elevators (India) Ltd. 2005 (181) ELT 156 (SC). (c) Union of India v. Mahindra Mahindra Ltd. 1995 (76) ELT 481 (SC). It is his submission that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said clarification. 6. It is his submission that the abovesaid clarification was given by the Board by issuing a circular combining all the Board Circulars issued till date. It is his submission that it is on record at the individuals are not contracted with the service recipient and neither the service recipient pays salary to the individuals but pays lump sum amount to the appellants herein who maintain employer and employee relations with the persons who are working in the godown and warehouse of M/s. Aspin Wall. Co. He would reiterate the findings of the adjudicating authority. 7. 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 appellant are classifiable under the heading "Manpower recruitment supply agency"? 8. 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 un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pers, 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 any other recipient of the services in both these appeals. As can be seen from the reproduced contracts and the invoices issued by the appellant 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. (supra) in paragraph 8 has laid down the ratio which is as under : "8. 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 would be decisive." (p. 253) An identical view was taken by Hon'ble Supreme Court in the case of Kone Elevators (India) Ltd. (supra) and Mahindra Mahindra Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X
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