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TMI Blog2019 (6) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... ang and 6.85 mt per person per gang respectively. This clearly shows that the payment is towards the supply of manpower for the various jobs as described in the above agreement. Moreover, the service recipient is making a separate payment towards the provident fund of the workers deputed by the service provider. It is evident from the debit note. From the debit note, it can be seen that the service recipient are obliged to pay a separate amount of provident fund to the appellant. If the contention of the appellant is considered, that the rate is as per tonne basis, but in such case, the recipient should not be responsible for any other payment except the actual rate given in the contract. However, from the above debit note, the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion order whereby demand of Service Tax amounting to ₹ 42,62,018/- and ₹ 7,58,894/- were confirmed along with demand of interest, penalty under section 76 and also imposed penalty under section 78. Being aggrieved by the Order in Original, the appellant filed the present appeal. 2. Ms. Priyanka Kalwani, Ld. Counsel appearing on behalf of the appellant submits that as per the contract, the appellant have provided the services of various works such as stacking, loading, jumbo handling, shifting, cleaning, upkeepment of equipments, etc. These independent services are not falling under manpower recruitment agency services. Therefore, the demand under manpower recruitment agency services is not correct. She submits th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration is also on the basis of manpower. He further submits that the provident fund is also paid separately by the service recipient, which establishes that the appellants are providing manpower recruitment agency service. 4. We have carefully considered the submissions of both sides and perused the records. We find that to decide whether the service fall under manpower recruitment agency services or otherwise, it is necessary to go through the contract of the appellant with the service recipient M/s GHSL which is reproduced below: From the above contract, though the work assigned by the recipient of service is of handling of various goods in their factory premises. However, as per the rate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ases are different from the facts of the present case and hence, all the judgments have been distinguished. As per our above discussion, we are of the view, as per the contract, the services provided by the appellant is of Manpower Recruitment Agency and Supply Services . Accordingly, it is taxable. As regard the penalty imposed under section 76 78, we find that the Hon ble High Court of Gujarat in the case of Raval Trading Company 2016 (42) S.T.R. 210 (Guj.) held that once the penalty under section 78 is imposed, no separate penalty under section 76 should be imposed. Accordingly, the penalty imposed under section 76 is set aside. Remaining portion of the order is upheld. Impugned order is modified to the above extent. Appeal is partly ..... X X X X Extracts X X X X X X X X Extracts X X X X
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