9911796707
TMI Blog2016 (4) TMI 987X X X X Extracts X X X X X X X X Extracts X X X X ..... he category 'Business Auxiliary Service'. The respondent also obtained registration as 'Manpower Recruitment Agency' under the Act with effect from 01.07.2005. 2. During the course of audit of accounts of M/s Birla Corporation Ltd. for the period August 2003 to January, 2005, the appellant-department found that the said company had entered into a contract with the respondent-assessee. After taking possession of a copy of this contract, the officer of the respondent-assessee namely, one Kailash Sharma was examined. On the basis of the statement given by him, the Department took a prima facie view that the contract was for the purpose of packing, loading and unloading etc. of the goods, for which labour was supplied by the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court to deal with the said writ petition, bypassing the adjudicatory machinery provided under the Act, more so when the statutory appeals against the adjudication orders are also provided. However, we find that the High Court has simply gone by the contract in question, which was entered into between the respondent and M/s Birla Corporation Ltd. and taking into consideration all the averments, which were made in the show cause notice, on the basis of admitted facts, it has come to a conclusion that even when the allegations in the show cause notice are accepted, the said contract does not amount to providing any 'Cargo Handling Service' as defined under Entry 23 of Section 65 of the Act. Therefore, we are of the opinion that the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... handling service, if it is provided by an independent agency and; (2) the service provider must independently be involved in loading-unloading or packing-unpacking of the cargo. 7. The aforesaid meaning given by the High Court while interpretating Entry 23 of Section 65 is perfectly in order and justified. On that basis, we have to see whether the twin conditions mentioned therein are satisfied in the present case or not. 8. We find from the record that in the instant case, as per the contract entered into between the respondent and the customer, namely, M/s Birla Corporation Ltd., the respondent was to supply manpower for working at the packing plant as per the customer's requirement. The contractor-respondent was to ensure that manp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee were held not to be 'Cargo Handling Services'. In arriving at such a conclusion, the Tribunal had referred to the clarificatory instructions, being F.No.B11/1/2002-TRU dated 01.08.2002 and the relevant portion therein was extracted at paragraphs 3 and 15. These paragraphs read as under :- "3. The services which are liable to tax under this category are the services provided by cargo handling agencies who undertake the activity of packing, unpacking, loading and unloading of goods meant to be transported by any means of transportation namely truck, rail, ship or aircraft. Well known examples of cargo handling service are srevices provided in relation to cargo handling by the Container Corporation of India, Airport Authority o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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