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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 ..... nterest and penal provisions of the Finance Act, 1994 have also been invoked. The matter got adjudicated by the impugned order-in-original dated 06.07.2016 whereunder all the charges as invoked in the show cause notice have been confirmed against the appellant by Adjudicating Authority. The appellant have approached the Commissioner (Appeals) for relief however, the appellant did not succeed at the appeal level also and vide order dated 06.10.2015 the appeal was dismissed by the Commissioner (Appeals). 2. The appellant are before us against the above mentioned impugned order-in-appeal and has submitted that the appellant has taken contract for assisting various industrial units in maintaining of fire fighting maintenance and detection service including the maintenance and upkeep of fire fighting equipments installed at the various factory premises. The appellant have submitted that payment which is being made to the appellant is on monthly lump-sum basis by individual industrial units. So far as statutory obligations under the law like Provident Fund and ECI etc. with regard to employees deployed by the appellant at various industrial units for the purpose of assisting their clien ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner of C. Ex. Punjab (10) S.T.R. N545 (S.C.). (g) Naya Sarai SSS Limited vs. CCE, Ranchi - 2023 (13) CENTAX 292 (Tribunal Cal.). 4. We have also heard Shri AR Kanani, learned Superintendent (AR) who has reiterated the findings as given in the impugned order-in-appeal. 5. We have heard both the sides. It will be relevant to have a glance at various work orders received by the appellant by various manufacturing units. The sample copy of the work order dated 29.12.2005 issued by M/s. Chambal Fertilizers and Chemicals Limited is reproduced below:- A perusal of the above mentioned work order makes it clear that annual contract was for assisting fire fighting and to handle any emergency arising due to fire incidence in the complex of M/s. Chambal Fertilizers and Chemicals Limited and to maintain fire safety equipments in healthy and working condition and for this purpose, the appellant are being paid an amount of Rs. 1,63,000/- per month. In the terms of contract, we find that it is the responsibility that appellant to make statutory monthly payment like PF, ECI etc. for his employees and the receipt of the same need to be forwarded to the unit entering into the contract for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear contract of manufacturing of excisable goods. 6. There is no dispute that the appellant after carrying out the manufacturing handed over the excisable goods to M/s. Nirma Ltd who ultimately cleared the said goods on payment of excise duty. It is also observed that the appellant were paid the service charges, as per the quantity of excisable goods i.e. detergent/cake manufactured by the appellant and the consideration is not with reference to the number of man power/man hour deputed for the manufacturing of excisable goods. This also shows that there is no contract between the appellant and M/s. Nirma Ltd for supply of man power. The activity carried out by the appellant is at the most considered as "production or processing of goods on behalf of the client" which is covered under the service head of "Business Auxiliary Service". If this be so, then the service is exempted under Notification No. 8/2005-ST. Since, the demand was raised under wrong head i.e. Man Power Recruitment and Supply Agency Service, for this reason also the demand is not sustainable. This tribunal time and again held that if contract is for particular job and not for man power supply the demand of serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 65(19) of Finance Act, 1994 levying service tax on processing of goods not amounting to manufacture. Process amounting to manufacture is kept specifically out of the scope of the entry. That being the case such an activity cannot be brought under service tax levy under "Business Support Service" because the underlying principle will apply to this entry also. The specific exclusion is not seen under 64(104c) for the reason that the legislature intended to deal with the issue under Section 65(19). We find that Revenue is also not disputing the position that manufacturing activity cannot be subjected to service tax. Revenues contention is that what JLSL was doing was manufacturing and what appellant (earlier known as PMSL) was doing was support services. 14. So the essential question to be determined is whether the impugned activity can be split into two - one as manufacturing by JLSL and the other as service by appellant (earlier known as PMSL) to JLSL. While considering this issue another issue that arises is whether there can be two manufacturers for the same goods. In the instant case JLSL claimed to be the manufacturer and the claim was accepted by Central Excise Departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny person who engages in their production or manufacture on his own account; 17. Therefore if either party was to apply for registration as a manufacturer the department would have accepted the application. Excise registration is only to the effect that one of the parties undertakes to discharge the excise duty liability on the goods manufactured. This cannot be interpreted to mean that the activity done by the other party is not manufacturing activity. Notification 214/86-C.E. only provides a mechanism by which the duty liability is fixed on the person supplying raw material and enables the clearance of the goods from the factory of actual manufacture subject to undertaking for payment of duty by the other party or its further use in the manufacture of excisable goods. In a situation where the other party (JLSL in this case) was willing to pay excise duty at the time of clearance of the goods from the factory of manufacture there was no need to adopt the procedure laid down in Notification 214/86-C.E. 18. We find that the predominant activities for manufacture were done by appellant (earlier known as PMSL). Their plant and machinery was used and their employees were doing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . For the period 1-10-2009 to 14-11-2010 the appeal is dismissed as withdrawn." Shiv Narayan Bansal-2013 (31) STR 747 (Tri.-Del.) "3. Heard both sides and perused the records. We have gone through the finding of adjudicating authority and also the observations of the authorities at page 63 of the appeal folder, wherein the authorities had noted that :- "In the instant case all the three persons mentioned in last para of the above letter are not covered under the above referred service as they did the job work themselves. The service receiver has not paid amount individual person who have performed the job work. Moreover, labour employed for the job work remained under the control of job worker and not in the control of the service receiver. Thus, party's contention appears to be correct." 4. On totality of the construction of the agreement at page 48 of the appeal folder without being read in piece-meal does not throw light to hold that the objective of the parties was to provide manpower only without carrying out manufacture. Had that been the objective, the appellant would have ceased to operate after supply of manpower. But that was not so. While object is clear from Cla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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