2023 (9) TMI 652 - AT - Service Tax

Appellant's Services Deemed Business Auxiliary, Not Manpower Supply. Demand for Service Tax Overturned.

NARESH K SOLNAKI Versus C.C.E. & S.T., RAJKOT

NARESH K SOLNAKI Versus C.C.E. & S.T., RAJKOT - TMI Issues Involved:1. Classification of services provided by the appellant.2. Applicability of 'Manpower Recruitment or Supply Agency Service'.3. Invocation of the extended period of limitation.Summary:1. Classification of Services Provided by the Appellant:The appellant engaged in activities such as breaking the upper cover of shell castings, drilling, and reducing the size of scrap pieces for M/s Intricast Private Limited. The department issued a show cause notice alleging that the appellant provided 'Manpower Recruitment or Supply Agency Service', making them liable for service tax. The adjudicating authority dropped the proceedings, stating that the appellant executed lump sum work/job work, which does not fall under 'Manpower Recruitment or Supply Agency Service'. However, the Commissioner (Appeals) reversed this decision, leading to the current appeal.2. Applicability of 'Manpower Recruitment or Supply Agency Service':The appellant argued that the payment received was based on the quantum of work performed, not on a man-hour or man-day basis, thus not constituting 'Manpower Recruitment or Supply Agency Service'. The work orders and invoices indicated that the appellant was paid per KG of castings processed, and the service recipient had no control over the manpower used by the appellant. The Tribunal found that the appellant provided 'Business Auxiliary Service' related to production or processing on behalf of their clients, not 'Manpower Recruitment or Supply Agency Service'. This conclusion was supported by several judgments, including Dhanashree Enterprise, Ritesh Enterprise, and Seven Hills Construction, which established that contracts for specific jobs do not classify as manpower supply services.3. Invocation of the Extended Period of Limitation:The appellant contended that the Commissioner (Appeals) had no jurisdiction to invoke the extended period of limitation solely because the appellant had not registered under 'Manpower Recruitment or Supply Agency Service'. The Tribunal agreed, noting that the lapse in registration did not constitute deliberate action to avoid paying service tax.Conclusion:The Tribunal concluded that the appellant provided 'Business Auxiliary Service' and not 'Manpower Recruitment or Supply Agency Service'. The demand for service tax under the latter category was not sustainable. The appeal was allowed, and the impugned order was set aside.