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TMI Blog2019 (6) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... k involved and is paid as lumsum per day of operation per rig. The terms of contract indicate that the appellants were not required to merely supply manpower or make such manpower available to M/s ONGC, but were required to carry out the task outlined in the agreement. The activity carried out by the appellants cannot fall within the category of Manpower Recruitment or Supply Agency Service - appeal allowed - decided in favor of appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... nition of Manpower Recruitment or Supply Agency Service. (ii) In respect of FCSP, it is submitted that the activity included operations as well as maintenance of drilling rigs. The ld.Advocate took us through the various terms of the contract and submitted that the appellant was required to carry out the operation and maintenance of the rigs with the help of necessary manpower to be mobilized by them. Consideration is paid for carrying out the above activity and not for supply of manpower. Further, it was submitted that the manpower deployed for carrying out said operation, remains in the employment of the service provider and under their control at every stage of the activity. As such, it is submitted that the activity cannot be covered by the definition of Manpower Recruitment or Supply Agency Service. (iii) In respect of APL, it is submitted that the service provider was required to carry out the maintenance and repair of drilling rigs and performed all the activities connected with the workover operation. As per this contract also, consideration is paid for the work carried out and not for supply of manpower. It is submitted that the workmen continued to remain the employ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said service was defined as under : "Manpower recruitment agency" means any commercial concern engaged in providing any service, directly or indirectly, in any manner for recruitment of manpower, to a client". With effect from 16.06.2005, the definition is as under : "Manpower recruitment or supply agency" means any commercial concern engaged in providing any service, directly or indirectly, in any manner for recruitment or supply of manpower, temporarily or otherwise, to a client". 9. As observed earlier, the terms of contract indicate that the appellants were not required to merely supply manpower or make such manpower available to M/s ONGC, but were required to carry out the task outlined in the agreement. We find that similar issue arose in the case of M/s Cauvery Enterprises (supra), wherein the Chennai Bench of the Tribunal had occasion to examine the liability for service tax in respect of a similar contract. The observations of the Tribunal in the above case, are reproduced below : "5.3 At the same time, there are a number of services which require engagement of manpower at the premises of the client. In our view, supply of manpower service would necessarily enta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per Sq. mtr. etc., but not on per man power supplied basis. In our view, therefore, the work contracted by BHEL to the appellant will not have essential characteristics of man power supply service. 5.2 True, the appellants supplied labourers to 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. This is the very clarification given by the CBEC in their circular dt. 15.12.2015, relied upon by Ld. Consultant. 5.3 Although Ld. A.R has argued that appellant had not brought up this argument before the lower authorities, it must be kept in mind that the said Board's circular has been issued only after the passing of the impugned order. In any case, appellant is entitled to take a legal plea at any point of time. 5.4 We also find that the decisions relied upon by the Ld. Advocate support the stand of the appellant. This very Bench, in the case of A. Malathy (supra), has held as under : "4. Heard both sides. The foremost is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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