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TMI Blog2018 (6) TMI 1363X X X X Extracts X X X X X X X X Extracts X X X X ..... actualise the contracted work. However such man power is not at the disposal or effective control of the service recipient during the period of contract, but such control is still with the appellants themselves. The nature of services provided cannot then be brought within the fold of Man Power Supply Service. Appeal allowed - decided in favor of appellant. - Appeal No. ST/737/2010 - Final Order No. 41877 / 2018 - Dated:- 26-6-2018 - Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical) Shri N.K. Bharath Kumar, Consultant For the Appellant Shri R. Subramaniyan, AC (AR) For the Respondent ORDER Per Bench The facts of the case are that proceedings were initiated against the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CCE Pune-I - 2017 (3) TMI - CESTAT MUMBAI . 3. On the other hand, Ld. A.R Shri R. Subramaniyan supports the impugned order. He submits that the before the lower authorities the appellant had only raised the argument that they were not a commercial concern. 4. Heard both sides and have gone through the facts. 5.1 From a perusal of the contracts, two dated 06.08.2005 and one dated 24.08.2005, we find that the works contracted by BHEL to the appellant were Material Handling Contract and Mobile Crane Contract . Perusal of the work schedule rates and approximate quantum of work to be handled given in the annexures to the contract indicates that the rates are per M.T or per Sq. mtr. etc., but not on per man power supplied basis. In ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng, handling and despatching of finished products on round the clock basis. 3) The agreed rates per terms and conditions of the contract are as follows : ₹ 43.65/MT (Rupees Forty three and paise sixty five only) of production and shipping. Service tax will be reimbursed on proof of payment with original challans. .... 6) The contract is awarded on the basis of Principal-to-Principal contract and the contractor shall be deemed 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 regardin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or supply agency services to M/s. KLL is concerned it is his submission that the agreement entered by appellant with KLL is for processing of the goods in the premises of the said KLL and is not manpower recruitment or supply agency services . He would draw our attention to various clauses of the work order/agreement entered by appellants with KLL and submit that appellants were paid per piece basis and appellants are free to engage any number of workmen and complete the job. 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.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncy services to other three companies like M/s. Caparo Engineering, M/s. Tata DLT International and M/s. Bosch Chassis, since the liability is not disputed and has been collected from the customer but not deposited to the Government, tax liability with interest and penalties needs to be upheld as also in the case the services rendered to KLL. . 6.3 As regards the service tax liability under the category of manpower recruitment or supply agency service, for the services rendered to 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 enter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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