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TMI Blog2009 (2) TMI 709X X X X Extracts X X X X X X X X Extracts X X X X ..... lant which is fully equipped and is in running condition and was not in a position to run the distillery plant, handed over the same on lease to M/s. Deccan along with 103 numbers of employees of the appellant factory for carrying out the production under the supervision and control of M/s. Deccan; that it was during the periods 2005-06 and 2006-07, the appellant received salaries of the employees and after making deductions under heads like Provident Fund, Gratuity, repayable amount and retention amount of 20% of each of salary, made payments to the employees; that the repayable amount of the appellant was utilized for day-today expenses of the factory and the same amount will be paid after the NABARD wage package is received by them and r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om years together are permanent and the appellant is paying all the benefits as per the law applicable from time to time; (ii) that 103 employees were loan to the party and the payments are made to them by the party; (iii) that the appellant is not in the business of Manpower Recruitment and Supply service and hence they are not liable to pay any service tax; (iv) that the appellant relies on the decision in the case of Sanjivani Takali SSK v. CCE, Aurangabad [2008 (10) S.T.R. 268]; (v) that the respondent has failed to take into consideration the appellant s detailed reply to the SCN and the written submission at the time of PH; (vi) that the respondent has failed to take into consideration the fact that the provisions of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same appellant, demanding service tax on account of Banking Other Financial Services and the same have been decided by the Commissioner (Appeals) Pune II and thus, since the activities of his client were in the knowledge of the department, the allegation of suppression of facts cannot be levelled against his client and he relied on the decision of the Apex Court in the case of Nizam Sugar Factory - 2008 (9) S.T.R. 314 (S.C.) = 2006 (197) E.L.T. 465 (S.C.). Therefore, the demand is not sustainable and time-barred. 4. I have gone through the case records including record of PH and citation relied upon by the appellant/Consultant. In the instant case, the issue to be decided is whether the appellant is liable to pay service tax, being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to get restructured loan at reduced rate. The above are the facts and also there is no doubt that the appellant was a Central Excise assessee, engaged in the manufacture of sugar and molasses. Due to financial circumstances, the appellant was forced to hand over the plant and machinery along with their employees on lease basis for a period of five years to M/s. Deccan. Since the employees are permanent and they cannot be sent back to their homes, it was also agreed upon in the agreement that M/s. Deccan will take their employees also and pay their salaries. Under the said agreement, the employees are engaged in the production of final products by M/s. Deccan. In other words, the manufacturing activities remained the same but were carried ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry itself was given, on lease. All the above facts prove that the officers are blindly making out the cases without understanding the intention of the Government. The intention of the Government is to bring agency who is engaged in the man power recruitment supply agency service to clients and whatever commission received for supply of man power recruitment supply agency service is only liable to be taxed. In the instant case, the appellant is charged with service tax under man power recruitment supply agency service on his own employees which is unheard so far. In this regard, the appellant relies on the decision in the case of Sanjivani Takali SSK Ltd. v. CCE, Aurangabad which is directly covering the issue on hand and also su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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