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TMI Blog2014 (4) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... of Central Excise & Customs (Appeals), Aurangabad, appeal filed by the Revenue is against Order-in-Appeal: the AGS (134) 285/09 dated 25/06/2009 passed by the same authority, Commissioner of Central Excise & Customs (Appeals), Aurangabad. As the issue involved in both these appeals is common, we take up both the appeals for consideration and disposal together. 2. M/s. The Sanjivani (Takli) Sahakari Sakhar Karkhana Ltd., (SSKL in short) leased out their plant and machinery to M/s. Bajaj Organic Ltd., Mumbai. In addition to leasing out the plant and machinery, the agreement dated 04/08/2002 also provided that the lessee, namely, Bajaj Organics Ltd., shall endeavour to engage maximum possible technical and other staff from amongst the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o dismissed the appeal. However, he reduced the penalty imposed under Section 76 to Rs. 25,000/-. Aggrieved of the same the appellant is before us. 2.2 In the appeal filed by the Revenue, the service tax demand of Rs. 42,070/- was confirmed by the adjudicating authority for the period August to December 2006 along with interest thereon apart from imposing penalties under sections 76, 77 and 78. On appeal the lower appellate authority came to the conclusion that the services rendered by the appellant did not come within the purview of 'manpower supply service' and accordingly he set aside the demands. Revenue has come up in appeal against the said order-in-appeal on the ground that the said order is not legal or correct and needs to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue against the Order-in-Appeal dated 25/06/2009 be dismissed for the same reason. 4. The learned Superintendent (AR) appearing for the Revenue submits that there was an understanding between the appellant and M/s. Bajaj for engagement of the staff of the appellant for which the appellant received a consideration. Therefore, this would constitute supply of manpower and hence service tax would be leviable on the consideration received. 4.1 As regards the order dated 25/06/2009 passed by the lower appellate authority, dropping the service tax demand for the period August to December 2006, the learned AR submits that, the lower appellate authority has not taken into consideration the previous order passed by the same authority vide order d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provides that service tax shall be paid on the gross amount received by the service recipient. The said section does not envisage that the service provider should always render the service on a profit basis. Even if loss is incurred in the provision of service, on the consideration received service tax liability would accrue. Therefore, merely because the appellant collected only 75% of the salary paid to the employees, it does not take the appellant out of the purview of service tax liability. The learned counsel's contention that the appellant is not engaged in supply of manpower service is also not correct. The law does not envisage that the appellant should be engaged in supplying manpower to various clients. Even if the activity un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that M/s. Bajaj was a group company or sister company. It is a totally different entity altogether and there was a specific agreement allowing M/s. Bajaj to engage the manpower of the appellant for a consideration. Therefore, the ratio of the decisions cited supra relied upon by the appellant would not come to their rescue. To apply the ratio, the facts should be identical and even a slight change of fact would render the ratio inapplicable as held by the hon'ble apex Court in the case of Alnoori Tobacco Products Ltd. [2004 (170) ELT 135 (SC). Therefore, we are unable to accept the plea of the appellant in this regard. 5.3 As regards the appeal filed by the Revenue, it is pleaded that not only the service tax demand along with interes ..... X X X X Extracts X X X X X X X X Extracts X X X X
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