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TMI Blog2018 (3) TMI 1005X X X X Extracts X X X X X X X X Extracts X X X X ..... d the contract speaks of execution of work. The employees are under the control and supervision of appellants for executing the work and not under the supervision of MFL. The appellant has discharged the statutory obligations of his workers which shows that they worked on behalf of appellant. The consideration is not paid by MFL on the basis of the number of persons employed but on the basis of work executed. A similar issue was analyzed by the Tribunal in the case of Bhaghyashree Enterprises [2017 (3) TMI 786 - CESTAT MUMBAI] wherein the Tribunal had held the issue in favour of the assessee holding that such lump sum work order can be considered as job work activity. - amounts received by the appellant cannot be taxed under the category ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 73,45,630/- under man power recruitment or supply agency services for the period from June 2005 to September 2008 and to the tune of service tax of ₹ 4,14,058/- under outdoor catering services for the period from May 2007 to September 2008. Appellant was awarded a contract by M/s.Madras Fertilizers Ltd. vide work order dt. 1.9.2006 for Bagging and Shipping Operation of bagged fertilizers on Tonnage Basis. The scope of the contract includes bins filling, bagging, stitching, handling and despatching of the finished product. The agreement specifically stated that the appellant is an independent contractor engaged in providing service / work / job to the extent stated in the contract. The contract does not specify number of workers to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.1/2006-ST dt. 01.03.2006; that the appellant had produced necessary documents to claim the abatement. The authorities below have not considered this plea. He requested that this issue may be remanded to the adjudicating authority to extend the abatement under Notification No.1/2006-ST. 3.1 The Ld. A.R Shri S. Govindarajan reiterated the findings in the impugned order. On scrutiny of records, it was found that the appellant was paying ESI and EPF benefits of the labourers employed by the appellant. This would conclusively establish that the appellant has supplied man power to Madras Fertilizers, their client. The contention of the appellant that the contract is lump sum contract for execution of job work cannot be accepted since the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to be an independent contractor engaged for the performance of services / work / job in the manner and to the extent provided in the contract. 12) While executing the work, you shall ensure that all the rules and regulations in force in MFL from time to time regarding security, safety, hygiene, sanitation and prohibited activities are complied with by you and your employees. On perusal of the contract, we do not find that there is any condition in the contract to specify particular number of workers. So also, the consideration is not fixed on the basis of hours of work. The scope of the work is to execute bins filing, bagging, stitching, handling and dispatch of finished product on round the clock basis. The rates are fixed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ob. He would submit that this activity would not fall under the category of manpower recruitment or supply agency services and is a lump sum work. He would rely upon the decision of the Tribunal in the case of Divya Enterprises - 2010 (19) S.T.R. 370 (Tri. - Bang.) for the said proposition and submit that the same has been following by the Tribunal in various other cases like Ritesh Enterprises - 2010 (18) S.T.R. 17 (Tri.-Bang.), Future Focus Infotech India (P) Ltd. - 2010-TIOL-835-CESTAT-MAD = 2010 (18) S.T.R. 308 (Tri.-Chen.). He would however fairly submits that the amounts need recalculation as the show cause notice is considering the entire amount received by the appellants in respect of other services also. Hence, he submits that this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o KLL, we find that the adjudicating authority has misconstrued the provisions and misdirected the findings to hold that the services would fall under the category of manpower recruitment or supply agency services . On perusal of the agreement entered by the appellants with KLL, we find that the said agreement specifically indicates about the consideration to be paid to the appellants based upon the number of units produced in the factory premises of KLL and there is no restriction as to the specific number of employees to be brought for such purposes; and work force employed by the appellant was on the role of the appellant only and is supervised by the appellant. In our considered view this contract cannot be considered as a contract for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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