2023 (5) TMI 393 - AT - Service Tax

Tribunal rules in favor of appellants in tax dispute, highlighting specific job assignments and control over workmen.

M/s. Suresh Contracts, Ms. P. Indirani, Shri. S. Palanivelu, M/s. Akila Contracts and M/s. Suriya Contracts Versus Commissioner of Central Excise & ST, Salem

M/s. Suresh Contracts, Ms. P. Indirani, Shri. S. Palanivelu, M/s. Akila Contracts and M/s. Suriya Contracts Versus Commissioner of Central Excise & ST, ... Issues Involved:1. Classification of services under 'Manpower Recruitment or Supply Agency' service.2. Applicability of service tax.3. Imposition of penalty and invocation of the extended period.Summary:1. Classification of Services:The primary issue in these appeals pertains to whether the activities undertaken by the appellants are taxable under the heading 'Manpower Recruitment or Supply Agency' service as defined under Section 65(68) of the Finance Act, 1994. The department's assertion is that the appellants are engaged in the supply of manpower, as there is an employee-employer relationship between the appellants and the persons carrying out the specified works. The appellants, however, argue that they are engaged in carrying out specified works such as packing, loading & unloading, and cleaning, which do not amount to supplying manpower to M/s. Livia.2. Applicability of Service Tax:The appellants contend that their activities are not taxable under 'Manpower Recruitment or Supply Agency' service, supported by the Board's Circular No. 190/9/2015-ST dated 15.12.2015, which clarifies that similar activities are not liable to tax under this heading. The appellants also cite several Tribunal decisions where agreements for execution of lump-sum work on a per-piece rate basis were not classified as manpower supply services. The Tribunal agreed with the appellants, noting that the contracts provided for payment based on the quantum of work handled and that supervision and control over the workmen remained with the appellants.3. Imposition of Penalty and Invocation of Extended Period:The appellants argued that no penalty should be imposed as the issue involves interpretation of law, referencing decisions by the Chennai Bench of the Tribunal. They also contended that the extended period is not invokable, citing the decision in International Merchandising Co, LLC Vs. CST, New Delhi. The Tribunal did not find it necessary to record findings on these issues as the appeals were disposed of on merits.Conclusion:The Tribunal concluded that the tax demands raised under 'Manpower Recruitment or Supply Agency' service could not be sustained. The impugned orders were set aside, and the appeals were allowed with consequential reliefs as per law. The Tribunal emphasized that the agreements indicated specific jobs assigned to the appellants, paid on a piece-rate basis, with supervision and control over the workmen resting with the appellants.