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TMI Blog2023 (9) TMI 1191X X X X Extracts X X X X X X X X Extracts X X X X ..... able under manpower recruitment or supply agency service - the appellant s service is correctly classifiable under cargo handling service as claimed by the appellant and not under manpower recruitment or supply agency service as alleged by the Revenue. Time Limitation - HELD THAT:- The appellant have been paying service tax on the same service under cargo handling service and discharged the service tax. The details of nature of service, payment of service tax etc. was declared in their ST-3 return. Nothing prevents the department from taking action against the appellant on the basis of the details provided in ST-3 returns, therefore, there is absolutely no suppression of fact on the part of the appellant. Hence, the demand is also hit by limitation for the extended period. The demand of differential service tax confirmed by the lower authorities is not sustainable - Appeal allowed. - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. C.L. MAHAR, MEMBER (TECHNICAL), Shri Abhishek Doshi, Chartered Accountant for the Appellant Shri Ajay Kumar Samota, Superintendent (AR) for the Respondent ORDER The brief facts of the case are that the appellant are engaged in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Loomtex Exports - 2014 (306) E.L.T. 294 (Mad.) 2.1. He further submits that the demand was raised for the period 2006-2007 to 2010-2011 by issuing show cause notice dated 26.09.2011 invoking the extended period. It is his submission that since the appellant was registered with service tax department and was paying service tax on the same service under cargo handling service, there is no suppression of fact, therefore, the extended period could not have been invoked. 3. Shri 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 sides and perused the records. We find that the issue in the present case, as per revenue is that the appellant have provided the Manpower Recruitment or Supply Agency Service to their client. To ascertain the actual nature of service we refer to the letter of the client. Some sample letters are given below:- From the above letter it is absolutely clear that the appellant have undertaken the specific work at Kandla Port such as:- Loading/unloading of the goods to/from the trucks at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der :- 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. 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 man-power 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 otherwise. We find from the records that M/s. Aspin Wall Co. had given the contract as under : Work Order No. 005/RE/2004-05 dated 20-11-2004 M/s. Ritesh Enterprises, Vjaya Mahal Surathkal 594158. Dear Sir, Godown handling operation at our Bagging Plant, Maroli We refer to work order of e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrival of bulk prompt standardization etc., 6. The labour utilized by you for the handling operations under this work order shall be treated as your employees and the company shall have no responsibility whatsoever in this regard. You shall comply with all statutory requirements, government regulations etc. and shall fully indemnify the company against any claims arising as a result of your failure to comply with such formalities. 7. Only 90% of the charges at the maximum will be paid to you for the completed work on weekly basis. The balance shall be released on satisfactory completion of the work shipwise/commodity wise and on your submitting the relevant bills. The company shall deduct 5% 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt, charged per Metric Tonne. 9. On a careful consideration of the above reproduced facts from the entire case papers, we find that the contract which has been given to the appellants is for the execution of the work of loading, unloading, bagging, stacking destacking etc., In the entire records, we find that there is no whisper of supply manpower to the said M/s. Aspin Wall Co. or to CWC or any other recipient of the services in both these appeals. As can be seen from the reproduced contracts and the invoices issued by the appellants that the entire essence of the contract was an execution 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. v. CCE, Punjab (supra) in paragraph 8 has specifically laid down the ratio which is as under : 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 contrac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly reads that the agency agrees for use of services of an individual to another person for a consideration as supply of manpower. In the cases in hand, there is no agreement for utilization of services of an individual but a job/lump-sum work given to the appellants for execution. The said clarification issued by the Board would be appropriate in the case where services of man power recruitment 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. We are of the considered view that the reliance 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. M/s. Divya Enterprises 2009- TIOL-2476-CESTAT-BANG 6. We have considered the submission is made at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f bags Rs. 25 00 per mt. Service charges Rs. 3.00 per mt. The rates given above shall be firm without any escalation during the tenure of this work order. However the company reserve its right to extend the same for farther period on mutual agreement. The company is at liberty to enter into parallel contract with any other party, if required. The overall interest of the company should be safeguarded by you and loss/damage to the company due to your negligence/fault shall be recovered from you. Please sign and return duplicate copy of this work order as a token of your acceptance of the rates terms and conditions mentioned hereinabove. 9. On a careful consideration of the above reproduced letter and facts from the entire case papers, we find that the contract which has been given to the appellants is for the execution of the work of loading, unloading, bagging, stacking destacking etc., In the entire records, we find that there is no whisper of supply manpower to the said M/s. Aspin Wall Co. or any other recipient of the services in both these appeals. As can be seen from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l and not between the individual and the person who uses the services of the individual. Such cases are covered within the scope of the definition of the taxable service (Section 65 (105)(k) since they act as supply agency, they fall within the definition of manpower recruitment or supply agency (section 65(68) and are liable to Service tax 11. It can be seen from the above reproduced portion of the Master Circular that it is in respect of supply of manpower which is engaged for specified period or for completion of particular projects or tasks. The clarification, is in case of supply of man power, it can be seen that the clarification specifically needs that the agency agrees for use of services of an individual to another person for a consideration as supply of manpower. In the cases in hand, there is no agreement for utilization of services of an individual but a job/lump-sum work given to the appellants for execution. The said clarification issued by the Board would be appropriate in the case where services of man power recruitment supply agency, had been temporarily taken by the Business or the industrial association for supplying of manpow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 meant any person engaged in providing any service, directly or indirectly, in any manner for recruitment or supply of manpower, temporarily or otherwise, to a client. 4 . After due process of law, the Commissioner found that the appellants had rendered taxable services classifiable under the category Manpower recruitment or supply agency of clause 68 of Section 65 of the Act during the material period without following the statutory formalities including payment of service tax. Hence the demand and penalties. 5. The appellant has sought to vacate the impugned order and to determine its liability under the appropriate categories of various services involved in the impugned activity. It is submitted before us that cleaning was classifiable separately and stenciling was classifiable under business auxiliary services. Various services involved had to be decided and service tax liability quantified correctly. Assessee had paid service tax and education cess involved before the issue of show cause notice and hence penalty and interest could not have been levied. The matter required to be remanded. 6. We have heard both sides. We find that the appellant had car ..... X X X X Extracts X X X X X X X X Extracts X X X X
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