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TMI Blog2024 (6) TMI 847X X X X Extracts X X X X X X X X Extracts X X X X ..... he relationship between the parties. For example, from the textbook scenario of complete control to complete independence lies a variety of circumstances involving a wide range of initiative and discretion being enjoyed by the worker - Mere reference to invoices raised or payments made, without reference to the specific provisions of a contract or working arrangement, will not be indicative of employer-employee relationship. In the light of the non-examination of the true nature of relationship between the parties a conclusion of the appellant being the employer of the workers cannot be fastened by assumptions and presumptions. Revenue has not proved its case regarding the true nature of the disputed activity provided by workmen to the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section/3(1) along with appropriate interest under Section 75 and imposed penalty under Sections 76,77 and 78 of the Act. Aggrieved by the said order, the appellant filed appeal before the Commissioner (Appeals) and the same was rejected. Hence the appellant is now before the Tribunal. 3. Shri N. Viswanathan, learned Counsel appeared the appellant and Shri Harendra Singh Pal, learned AR appeared for the respondent. 4. The Ld. Counsel for the appellant stated that they are a small-scale manufacturer engaged in the manufacture and sale of flush doors. Upon request of their customers, they arrange to engage carpenters to be sent to the required premises for fixing the door or for altering it. The carpenter/s so engaged are not their employees ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l in the case of Tiwari Services reported in [2020 [37] GSTL 57] supports their case. He stated that there was no suppression of any fact to invoke the extended time limit for issue of SCN. Nor was there any violation on their part to impose a penalty. He prayed that the impugned order be set aside by allowing their appeal with consequential relief and render justice. 5. The learned AR Shri Harendra Singh Pal, appeared and argued for the department. He reiterated the findings in the impugned order. He stated that the department on scrutiny of the records of the appellant noticed that they had raised labour charges invoices for door fixing and alteration, designing and carpentry work at the customer site as labour contractor. The activity fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This test (organisation test) looks at the degree of integration in work committed in the employer s primary business with the understanding that the higher the level of integration, the more likely the worker is to be an employee. (Organisation Integration Test) [See Silver Jubilee Tailoring House vs Chief Inspector of Shops Establishments (1974) 3 SCC 498] iii) whether the employer had the power to select, appoint and dismiss the persons without restriction. The persons, like any typical employee enjoyed benefits such as leave/paid time off, holidays, bonus, perquisites, social security, insurance coverage etc (Mutual Obligation Test) [See Ram Singh vs U.T. of Chandigarh (2004) 1 SCC 126 (Supreme Court)] iv) whether the workers are provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent situation as reflected in the reply of the noticee, they act as an interface between the buyer and themselves. It is there on record that fixing and alteration work involves designing and carpentry work at the customer s site. 15. The noticee themselves have admitted that they are raising invoices for engaging the services of carpenters. In such a situation, the service rendered by M/s. Diamond Flush Doors Pvt. Ltd. fits exactly in the category of Manpower Supply Service . It could be true that the noticee is not recruiting but the supply of manpower is an admitted position even according to the reply furnished by the noticee. Hence, I am inclined to hold that the demand of service tax of Rs.5,62,192/- and Rs.10,177/0 is liable to be c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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