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TMI Blog2013 (8) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... under ‘Business Auxiliary Service' and not under ‘Manpower Recruitment of Supply Agency Service. - The work undertaken is harvesting of sugar cane and transporting the same to the sugar factory for which labour is employed. The sugar cane belongs to the sugar factory in terms of the agreement of sale executed between the farmers and the sugar factory. Therefore, the activity undertaken by the appellant is one of procuring or processing of the goods belonging to the client which is classifiable under ‘Business Auxiliary Service' and not under ‘Manpower Recruitment of Supply Agency Service. - Decided in favor of assessee. - ST/166/2009 - ORDER NO.A/532/13/CSTB/C-I - Dated:- 2-4-2013 - P R Chandrasekharan and Anil Choudhary, JJ. For t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equivalent amount of penalty was also imposed under section 78 apart from a penalty of Rs.5000/- under section 77. Hence the appellant is before us. 3. The learned Counsel for the appellant made the following submissions: 3.1 The individual farmers entered into agreements with the sugar factory for sale of sugar cane before the commencement of sugar cultivation and the factory pays advance to the farmers for meeting the expenses for growing the sugar cane, harvesting and transporting the same. As per the agreement, it is the farmer's responsibility to deliver sugar cane from the field to the sugar factory. 3.2 It is difficult for each individual farmer to make arrangement for harvesting and transporting the sugar cane up to the sugar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rop is covered under the Sale of goods Act, 1930 and in view of the agreements between the farmers and the sugar factory, it is transfer of property in goods to the sugar factory by the farmer and the transaction is one of sale. The activity of harvesting and transportation is incidental to sale. 3.4 It is also contended that out of the period from 16/06/2005 to 03/06/2007 covered by show cause notice dated 21/04/2008 the period from 16/06/2005 to 31/03/2007 is barred by limitation in the absence of any suppression or conscious withholding of any information. 3.5 In a similar case pertaining to Shriram Krishi Audyogik Ous Todani , the Commissioner of Central Excise (Appeals) vide order-in-appeal No. PII/PAP/67/2010 dated 21/04/2010 held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AR) appearing for the Revenue submits that in terms of the agreement entered into by the appellant with the sugar factory, it includes cutting work done through labourers. The agreement dated 15/11/2012, a copy of which is available on record, clearly states that our company will provide trucks, tractors, bullock carts and labour for sugar cane cutting including labour carrying sugar cane on head, i.e., dolly center or doycee center, along with all necessary equipments to cut the sugar cane of the members and non-members of the karkhana within the operating limit of the karkhana and from outside the operating limit of the karkhana and transporting it to the karkhana's site . From this clause it is evident that the transaction is one of sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t also provides that the bill of work of cutting/transporting sugar cane done by the labour contractor has to be taken from the sugar cane producer (farmer) and be paid to the labour contractor as per rates fixed by the appellant. In addition to the above, there is another agreements between the appellant and the sugar factory. The agreement is for sugar cane cutting and transportation. As per the said agreement, it is the sugar factory's responsibility to make available all equipments, tractors, trucks, bullock carts and cutting labourers and the appellant's responsibility is to cut the sugar cane of their members and non-members within and outside the area of operation and deliver the same at the factory gate. The responsibility of paymen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis of the sugar cane delivered at the factory site and not on the basis of number of persons employed. 5.2 As per the provisions of Section 65(68) Manpower Recruitment or Supply Agency service' means any person providing any service, directly or indirectly, in any manner, for the recruitment or supply of manpower, temporarily or otherwise to any person' and as per Section 65(105)(k) taxable service' means any service provided or to be provided to any person, by a manpower recruitment or supply agency in relation to the recruitment or supply of manpower, temporarily or otherwise, in any manner'. 5.3 From the above definition it is clear that the service brought under the tax net under the Manpower Recruitment or Supply Agency Ser ..... X X X X Extracts X X X X X X X X Extracts X X X X
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