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TMI Blog2023 (8) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... deputed for the job, whereas the service recipient has assigned the job to the appellant only in respect of sorting, shifting and cleaning of container s materials. The control of the manpower in this fact is obviously with the appellant and not with the service recipient. In this fact it is clear that the appellant have not provided the services of Manpower Supply or Recruitment Agency Services , this fact of the case is not under dispute as on this basis only the Adjudicating Authority has dropped the proceeding initiated in the show cause notice. This issue has come up time and again before this Tribunal. This Tribunal in the case of RITESH ENTERPRISES VERSUS COMMISSIONER OF CENTRAL EXCISE [ 2009 (10) TMI 182 - CESTAT, BANGALORE] has held that as per the master circular dated 23.8.2007 would be appropriate in the case where services of manpower recruitment and supply agency had been temporarily taken by the business or the industrial association for supplying of manpower and may/may not be for execution of a specific work. Therefore, the reliance placed by the adj. authority on the said circular would not carry the case of the revenue any further. Thus impugned order set a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncy Services . It is necessary that supervision the manpower which was supplied by the assessee should be of service recipient, which is not a case here. Therefore, the service is not classifiable under manpower recruitment or supply agency services . He placed reliance on the following board circular and judgments: Circular No. B1/6/2005-TRU dated 27.07.2005 Circular No. 96/7/2007 dated 23.08.2007 Ritesh Enterprises v. CCE, Bangalore 2010 (18) STR 17 Sureel Enterprises Pvt. Ltd. v. CCE ST, Ahmedabad 2019 (10) TMI 1245 Sureel Enterprises Pvt. Ltd. V. CCE ST, Ahmedabad 2021 (5) TMI 802 Nishkarsh Industries Services V CCE ST, Vadodara II 2022 (9) TMI 901 Pranav Oxygen v. CCE ST 2020 (1) TMI 309 Manish Enterprises v. CCE, Pune-I 2016 (42) STR 352 Nizam Sugar Factory v. CCE ST, AP 2006 (197) ELT 465 3. Shree Ajay Kumar Samota Learned Superintendent (AR) appearing on behalf of the Revenue reiterates the finding of the impugned order. 4. We have carefully considered the submission made by both the sides and perused the records. We find that in the present case the revenue sought to classify, the activity of the appellant under Manpower R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or indirectly, in any manner for recruitment or supply of manpower, temporarily or otherwise, to a client. The taxable service liable for service tax is also defined under section 65(105)(k) which is as under : any service provided to a client, by a manpower recruitment or supply agency in relation to the recruitment or supply of manpower, temporarily or otherwise, in any manner. From the plain reading of the above reproduced definitions in the Finance Act, 1994, we find that the activity should be providing of any service directly or indirectly in any manner for recruitment or supply of manpower temporarily or otherwise to a client in order to get covered under the said definition. There should be either a recruitment or supply of manpower temporarily or other-wise. We find from the records that M/s. Aspin Wall Co. had given the contract as under : Work Order No. 005/RE/2004-05, dt. 20-11-2004 M/s. Ritesh Enterprises, Vijay Mahal Surathkal 594158. Dear Sir, Godown handling operation at our Bagging Plant, Maroli We refer to work order of even number dated 20-11-2003 and further discussions had with you on the handling of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory completion of the work ship-wise/commodity-wise and on your submitting the relevant bills. The company shall deduct 5 per cent from your bills towards Security deposit and the same shall be kept in your running account till a total security of 1.5 lakhs is maintained. 8. The Company reserves its right to terminate this work order without assigning any reason by giving you one week's notice. Please sign and return duplicate copy of this work order as a token of your acceptance of the rates, terms and conditions mentioned hereinabove. Contract awarded by Central Warehousing Corporation is as under : No. H-700 (22) MLR-RI/2005/6473 - Dated 28-12-2004 M/s. Ritesh Enterprises, Vijay Mahal, Suratkal-574 158. Sub: Appointment of H T contract on ad hoc basis at CW. Mangalore-reg. Ref. : 1. Tender No. CWC/BLR/H-700(22)/04 dated 7-10-2004 2. Telegram dated 27-12-2004. Sir, Please refer to our tender referred above submitted and opened on 18-10-2004 and negotiations had on 23-12-2004 at this office for ad hoc handling and transport contract at Central Warehouse, Mannangudda, Mangalore. We are ple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution of work as understood by the appellant and the recipient of the services. We find that the Hon'ble Supreme Court in the case of Super Poly Fabriks Ltd. (supra) in paragraph 8 has specifically laid down the ratio which is as under : 8. There cannot be any doubt whatsoever that a document has to be read as a whole. The purport and object with which the parties thereto entered into a contract ought to be ascertained only from the terms and conditions thereof. Neither the nomenclature of the document nor any particular activity undertaken by the parties to the contract would be decisive. (p. 253) An identical view was taken up by Hon'ble Supreme Court in the case of Kone Elevators (India) Ltd. (supra) and Mahindra Mahindra (supra) in a similar issues. The ratio of all the three judgments of the Hon'ble Supreme Court, is that the tenor of agreement between the parties has to be understood and interpreted on the basis that the said agreement reflected the role of parties. The said ratio applies to the current cases in hand. We find that the entire tenor of the agreement and the purchase orders issued by the appellants' service recipient clearly indicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iance placed by the learned SDR and the learned Commissioner on the circular will not carry the case of the revenue any further. 12. Accordingly in view of the above findings, we are of the view that the impugned orders are liable to be set aside and we do so. The appeals are allowed with consequential relief if any. Since we have disposed of the appeals on merits itself, no findings are recorded on other submissions made by both sides in these appeals. 4.4 In the similar case of Sureel Enterprises Pvt. Limited (Supra) the Tribunal has passed the following order: 5. We find that very identical issue in the appellant's own case for the previous period i.e. June 2005 to June 2010 was considered by this Tribunal in Service Tax Appeal Nos. 2327 of 2011, 768 of 2011 and 10391 of 2013.In these appeals this Tribunal has passed a Final Order No. A/11947-11949/2019 dated 18.10.2019 whereby it was held that the appellant's activities amount to manufacture and does not amount to service of Manpower Recruitment Agency Service. Accordingly, the appeals were allowed. This Tribunal following various judgment namely, Ramesh C. Patel 2012 (25) STR 471 (Tri. Amd.), Jubilant Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the present case, the service recipient is having their factory and carried out various manufacturing activities. The present appellant was assigned job work related to manufacturing on the basis of charges which is per piece basis and the item being manufactured by the appellant. As per terms and conditions of the agreement, the service recipient will provide all the facilities such as machines, tools, place etc. The appellant has only to undertake work done their skilled, semi- skilled, non-skilled workers as per drawing by appointing workers/contractor. It is also one of the conditions that the appellant is under obligation to pay minimum wages to its workers even though there is no work. However, whenever there is work, the charges will be paid by the service recipient to the appellant as per the rates decided i.e. per piece basis. 5. As regards the responsibility and control, it is the appellant who has to bear all the responsibility of appointed workers according to the labour laws. With the aforesaid terms and conditions, it is clear that the appellant is carrying out the job work relating to manufacturing as per agreement entered with the facilities provided by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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