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TMI Blog2014 (12) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... recruit any persons; they also do not supply manpower to the sugar factory. What they have undertaken is harvesting of sugarcane and transportation of the same to the sugar factory. To undertake this work, they have engaged labour/transport contractors who have undertaken the work of harvesting of sugarcane and transportation of the same. In any service activity, manpower is required. That does not make the service as supply of manpower. From the statutory definitions and the contracts entered into by the appellants, it is clear that there is no element of manpower supply or recruitment by the appellants to the sugar factory and therefore, the services rendered by the appellants cannot be classified under manpower recruitment or supply agency services, by any stretch of imagination. It is also worth noting that the appellants do not undertake this work for anybody else except for the sugar factory concerned. In other words, they do not supply manpower to any customer who approaches them. Therefore, the impugned demands by classifying the activity under “manpower supply service” are not sustainable in law. Following the decisions of this Tribunal in the cases of Amrit Sanjivni S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chh. Rajaram SSK Ltd. 06 ST/150/10 Sadashivrao Mandlik OTVSM 4/ST/2009 dated 30-12-2009 CCE, Kolhapur 1,09,95,261/- Sadashivrao Mandlik Kagal Tal. SSK Ltd. 07 ST/455/10 CCE, Kolhapur P-II/AV/ 89/2010 dated 18-6-2010 CCE (A), Pune-II 20,29,462/- Kisanveer Satara SSK Ltd. 08 ST/456/10 CCE, Kolhapur P-II/AV/ 93/2010 dated 18-6-2010 CCE (A), Pune-II 24,31,525/- Balasaheb Desai SSK Ltd. 09 ST/464/10 CCE, Pune-II P-II/AV/ 92/2010 dated 5-7-2009 CCE (A), Pune-II 41,45,086/- Cane Agro Energy (I) Ltd. 10 ST/465/10 CCE, Pune-II P-II/AV/ 88/2010 dated 18-6-2009 CCE (A), Pune-II 47,29,741/- Dongrai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional services such as feeding of sugarcane in the sugar mill, cleaning of parking yard of vehicles transporting sugarcane, loading/ unloading/handling of press mud, bailing of bagasse, handling of loose bagasse, collecting/removing/disposal of boiler ash, supply of wood for burning in the boiler, handling/stacking of compost, disposal of spent wash by spraying on the press mud, stitching of sugar bags, etc. The department was of the view that the activities undertaken by the appellants amount to supply of manpower and therefore, the appellants are liable to discharge service tax on the said activity under the category of supply of manpower service on the total consideration received from the sugar factories. Accordingly, notices were issued and demands were confirmed along with interest thereon and penalties were also imposed. Aggrieved by these decisions, the appellants are before us. In respect of the 5 appeals filed by the Revenue, the respondents also undertook harvesting and transportation of sugarcane as described above and the demands for service tax were made under manpower supply service by the adjudicating authority against which appeals were filed before the Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been issued invoking the extended period of time when there is no suppression on the part of the appellants. Therefore, the demands are also time-barred in most of the cases. It is also submitted that the activity of harvesting and transportation of sugarcane would come under the category of Business Auxiliary Service (BAS). This Tribunal, in identical circumstances, in the cases of Amrit Sanjivni Sugarcane Transport Co. Pvt. Ltd. v. CCE, Aurangabad vide Order No. A/532/13/CSTB/C-I, dated 2-4-2013, Samarth Sevabhavi Trust v. CCE, Aurangabad vide Order No. A/1158/13/CSTB/C-I, dated 24-5-2013 [2014 (36) S.T.R. 83 (Tri. - Mum.)] and Bhogavati Janseva Trust and Ors. v. CCE, vide Order No. A/1274-1279/13/CSTB/C-I, dated 12-6-2013 [2014 (34) S.T.R. 410 (Tri. - Mum.)] have held that the activities undertaken by the appellants merit classification under BAS and not under supply of manpower service. Accordingly, the ld. Counsel pleads for allowing the appeals. 3.2 In respect of jobs such as bailing of bagasse, handling of sugar, stitching of sugar bags, feeding of sugarcane in the sugar mill, etc., the ld. Counsel submits that the appellant had undertaken these works for which con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Sanstha on fortnightly basis. 4. The commission/incentive payable to the contractors will be handed over by Karkhana to the Sanstha which further has to be paid by Sanstha. 5. Karkhana will not be responsible for the injury if any, caused to any cane cutting labourer while doing the cane cutting. 6. For arranging the cane cutting and transportation, the Karkhana will pay the consideration to the Sanstha as and when demanded by the Sanstha. 7. The Sanstha also will carry out the jobs of handling of sugar, feeding of sugarcane in the sugar mill, cleaning of parking yard of vehicles transporting sugarcane, loading/unloading/handling of pressmud, baling of bagasse, handling of loose bagasse, collecting/removing/disposal of boiler ash, supply of wood for burning into the boiler, handling/stacking of compost, disposal of spentwash by spraying on the pressmud, stitching of sugar bags. The rates for the said job will be decided by the Karkhana and Sanstha. 8. The karkhana will retain 15% amount of every bill raised for cane cutting transportation job as well as other jobs as security deposit and will handover to the Sanstha after satisfa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r ash removal/handling ₹ 500 per day 6. Sugar handling (for 50 kg bags) 1. Sugar house ₹ 85 /100 bags 2. Intake/stacking ₹ 45/100 bags 3. Delivery (re-stacking/melting /cleaning) ₹ 85/100 bags 7. Stitching of sugar bags ₹ 17/100 bags 5.2 The Hon ble Apex Court in the case of Super Poly Fabriks Ltd. v. Commissioner [2008 (10) S.T.R. 545 (S.C.)], in similar circumstances laid down the ratio of how to read an agreement or contract as under :- 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. If we apply the ratio of the above decision to the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etch of imagination. It is also worth noting that the appellants do not undertake this work for anybody else except for the sugar factory concerned. In other words, they do not supply manpower to any customer who approaches them. Therefore, the impugned demands by classifying the activity under manpower supply service are not sustainable in law. 5.4 It is further seen that the activity undertaken by the appellant merits classification under BAS which is defined under Section 65(19) of the Finance Act, 1994, as follows :- business auxiliary service means any service in relation to, - (i) promotion or marketing or sale of goods produced or provided by or belonging to the client; or (ii) promotion or marketing of service provided by the client; or (iii) any customer care service provided on behalf of the client; or (iv) procurement of goods or services, which are inputs for the client; or (v) production or processing of goods for, or on behalf of, the client; or (vi) provision of service on behalf of the client; or (vii) a service incidental or auxiliary to any activity specified in sub-clauses (i) to (vi), such as billing, issue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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