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TMI Blog2024 (9) TMI 693X X X X Extracts X X X X X X X X Extracts X X X X ..... power and the same is for specific purpose for fire fighting and to handle any emergent situation as well as for maintenance and keeping the fire fighting equipments in good condition. The activity undertaken by the appellant does not fall under the category of Manpower Recruitment or Supply Agency Service. The impugned order-in-appeal is not sustainable - appeal allowed. - HON BLE MR. SOMESH ARORA , MEMBER ( JUDICIAL ) HON BLE MR. C. L. MAHAR , MEMBER ( TECHNICAL ) Shri Mrugesh G. Pandya , Advocate for the Appellant Shri AR Kanani , Superintendent , ( AR ) for the Respondent ORDER C. L. MAHAR : The brief facts of the matter are that the appellant is engaged in assisting fire safety service to handle any emergency arising at the client s premises and to maintain fire and safety equipments in working condition. The department during the course of audit and scrutiny of the financial records of the appellant entertained a view that the appellant is providing Manpower Recruitment or Supply Agency Service and have not paid the service tax amounting to Rs. 34,03,091/- for the period October 2006 to March 2011. Accordingly a show cause notice dated 02.04.2012 came to be issued asking to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the part of the department to allege that the appellant have supplied manpower to various companies. It has been contended that they have taken a specific work of fire detection and for handling and to upkeep fire safety equipments on an annual contract basis, therefore, the same does not fall under the category of Manpower Recruitment or Supply Agency Service as provided under Section 65 (68) of the Finance Act, 1994. The learned advocate argued that when specific job is undertaken on lump-sum payment on monthly/ annual basis, same cannot be classified as service under the category of Manpower Recruitment or Supply Agency Service. The learned Counsel has also relied upon various decisions in this regard : - (a) Pranav Oxigen vs. CCE, Vadodara-II - CESTAT Final Order No. A/1127/2019 dated 19.11.2019. (b) Sureel Enterprise Pvt. Limited vs. CCE ST, Ahmedabad CESTAT Final Order No.A/11947-11949/2019 dated 18.10.2019. (c) Seven Hills Construction vs. Commissioner of Service Tax. Nagpur- 2013 (31) S.T.R. 611 (Tri-Mumbai) (d) Commissioner vs. Seven Hills Construction 2017 (7) G.S.T.L. J122 (Bom.). (e) C.C.C. EX. ST., Aurangabad vs. Shri Smarth Sevabhavi Trust- 2016 (41) STR 806 (Bom.) 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T, Ahmedabad vide order No. A/11947-11949/2019 dated 18.10.2019, which is as under:- 5. We have carefully considered the submissions made by both the sides and perused the records. We find that the appellant entered into agreement dated 20.11.1999 with M/s Nirma Ltd, Bhavnagar, according to which the appellant was supposed to manufacture of detergent on job work basis. however, subsequently, they made another agreement dated 28.05.2005 according to which the appellant were required to carry out the process of converting the raw-material into detergent/cake in the factory premises of M/s Nirma Ltd, Bhavnagar, with the plant or machinery, material land, and building provided by M/s. Nirma Ltd, Bhavnagar. We observed from both the agreement that the ultimate activity which is to be performed by the appellant is to convert raw material and packing material into packed detergent/cake irrespective of the fact whether the same is carried out in the appellant s premises or at the premises of the service recipient i.e. M/s. Nirma Ltd. Even as per the agreement the clear understanding between the appellant and M/s Nirma Limited is not for supply of man power but to carry out manufacturing ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the Order-in-Original, the adjudicating authority proceeded on the ground that there was no challenge to the liability of tax at all since the appellant had deposited the amount during investigation. Commissioner (Appeals) in her order simply stated that she agreed with the view of the adjudicating authority and went on to say that appellants had wilfully suppressed the fact of service and appellants failed to pay service tax. Both the authorities have not at all discussed how the service provided by the appellant amounts to service of manpower recruitment or supply. After considering the records, submissions and the orders passed by the lower authorities, I am unable to find any ground on which the appellant can be held liable to service tax on the activity undertaken by them. In the result appellant succeeds and the appeal is allowed with consequential relief to the appellant. Jubilant Industries Ltd-2013 (31) STR 747 (Tri.-Del) 13. We are in agreement with the contention that the same activity cannot be considered as manufacturing and subjected to excise levy and at the same time considered to be a service and subjected to service tax. This principle does not need much discu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not charged in the hands of the person doing the manufacturing activity. Notification 214/86-C.E. is applicable in such cases. 16. Section 2(f) of Central Excise Act defines manufacture and manufacturer as under : manufacture includes any process, - (i) incidental or ancillary to the completion of a manufactured product; (ii) which is specified in relation to any goods in the Section or Chapter notes of the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) as amounting to manufacture; or (iii) which is specified in relation to any goods in the Section or Chapter notes of the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) as amounting to manufacture; or which, in relation to the goods specified in the Third Schedule, involves packing or repacking of such goods in a unit container or labelling or re-labelling of containers including the declaration or alteration of retail sale price on it or adoption of any other treatment on the goods to render the product marketable to the consumer; and the word manufacturer shall be construed accordingly and shall include not only a person who employs hired labour in the production or manufacture of excisable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cost and variable cost and that cannot change the nature of the activity. What could have changed the nature of the activity is a situation where no manufacturing activity took place and still the appellant collected their charges. 19. We also do not find merit in Revenue s argument regarding suppression of facts. The contract was placed before the department from the very beginning when JLSL took Central Excise registration. The Department did not raise any issue at that time. The contention of Revenue is that the fact that they were charging separately for fixed costs and variable costs was not disclosed to the department. As already stated we are of the view that this aspect could not actually change the nature of the activity. 20. In view of the analysis as above we hold that the activities under taken by the appellant during the period April 07 to Sept. 09 being a manufacturing activity carried out cannot be classifies as business support service and subjected to service tax and hence the demand fails. This demand fails on account of time-bar also because we are of the view that all relevant facts have been disclosed to the department in time. So this part of the appeal is all ..... X X X X Extracts X X X X X X X X Extracts X X X X
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