2019 (10) TMI 1245 - AT - Service Tax

Tribunal allows appeal, exempts appellant from service tax under Manpower Recruitment, jurisdiction issue remains open.

Messers Sureel Enterprise Pvt. Ltd., M/s. Sureel Enterprise P. Ltd. Versus C.C.E. & S. T- Ahmedabad-iii

Messers Sureel Enterprise Pvt. Ltd., M/s. Sureel Enterprise P. Ltd. Versus C.C.E. & S. T- Ahmedabad-iii - TMI Issues Involved:1. Classification of services provided by the appellant.2. Jurisdiction of the adjudicating authority.3. Revenue neutrality and availability of CENVAT credit.4. Applicability of service tax under 'Manpower Recruitment and Supply Agency Services.'Issue-wise Detailed Analysis:1. Classification of Services Provided by the Appellant:The appellant entered into agreements with M/s Nirma Limited to manufacture detergent on a job work basis. The department argued that the appellant provided manpower for manufacturing detergent, thus liable for service tax under 'Manpower Recruitment and Supply Agency Services.' However, the appellant contended that their activity was manufacturing, as they were paid based on the quantity of goods produced, not the number of workers. The Tribunal observed that the agreements indicated a contract for manufacturing excisable goods, not manpower supply. The appellant’s activity was deemed 'production or processing of goods on behalf of the client,' which falls under 'Business Auxiliary Service' and is exempt under Notification No. 8/2005-ST. The Tribunal concluded that the demand raised under 'Manpower Recruitment and Supply Agency Service' was not sustainable.2. Jurisdiction of the Adjudicating Authority:The appellant argued that the proceedings were beyond the jurisdiction of the proper authority, as the jurisdictional commissionerate was Ahmedabad-I, but the proceedings were carried out by Ahmedabad-III. The Tribunal noted this issue but did not provide a concluding opinion, as the primary issue was decided on merit.3. Revenue Neutrality and Availability of CENVAT Credit:The appellant argued that even if service tax was payable, it would be available as CENVAT credit to M/s Nirma Ltd., making the exercise revenue neutral. The Tribunal acknowledged this argument, noting that the appellant submitted details showing significant excise duty payments by Nirma Ltd. from PLA/cash, indicating no loss to the government exchequer. However, the Tribunal did not give a concluding opinion on this issue since the primary issue was resolved on merit.4. Applicability of Service Tax under 'Manpower Recruitment and Supply Agency Services':The Tribunal referred to several judgments to support the view that when a contract is for job work and not for manpower supply, service tax under 'Manpower Recruitment and Supply Agency Services' cannot be levied. The cited cases consistently held that such contracts should be classified based on the nature of the activity performed, which in this case was manufacturing. The Tribunal concluded that the appellant’s activity did not fall under the category of manpower supply.Conclusion:The impugned order was set aside, and the appeals were allowed with consequential relief. The Tribunal held that the appellant was engaged in manufacturing excisable goods and not in supplying manpower, thus not liable for service tax under 'Manpower Recruitment and Supply Agency Services.' The issue of jurisdiction was left open, and the argument of revenue neutrality was acknowledged but not conclusively addressed.