TaxTMI 
TaxTMI 
2009 (12) TMI 155
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....he appellants and resumed documents. On scrutiny of the said documents it was noticed by the officers of the revenue that the appellants were to provide all the service as enumerated above, had supplied labourers to M/s. Aspin Wall & Co. and CWC. On conclusion of the investigation and scrutiny of the documents and after recording the statements of various persons, the lower authorities felt that the services rendered by the appellant would fall under 'manpower recruitment and supply agency' and having not discharged the service tax liability, appellant is liable to pay service tax for the period from June, 2005 to September, 2006. Coming to such a conclusion, show-cause notice was issued to the appellant. The appellant filed a detailed reply to the show-cause notice and contested each and every allegation made in the show-cause notice. The main ground of the appellant before the adjudicating authority was that the contract which was given by M/s. Aspin Wall & Co. was a works contract and not for supply of labourers. It was also argued that the show-cause notice is hit by limitation. The learned Commissioner (Appeals) after considering the submissions made by the appellant b....
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....employed by the company. There is no intermediary and hence no consideration is paid to or payable to any intermediary. The service tax would be leviable only when the services of a person are engaged for recruitment or supply of artisans'. Following the ratio of above decisions and circular and my above findings, I hold that the subject activity of loading, standardization, unloading, stacking, weighing etc., carried out by the appellants, by deploying their own employees at the godown premises of M/s. Aspinwall & Co. Mangalore should be classified as Manpower recruitment agency service and the service tax is leviable on the said activity." Coming to the above reproduced conclusion, the learned Commissioner (Appeals) upheld the classification of the services rendered by the appellant under the category of 'manpower recruitment and supply services' and upheld the confirmed demand, interest under section 75 of the Finance Act, penalties imposed under sections 76, 77 and 78 and also under rule 7C of the Service Tax Rules. Aggrieved by such an order the appellant is before us. Learned counsel appearing on behalf of the appellants would submit as under:- ....
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....authority on the CBEC circular dated 27-7-2005 is out of context as the said circular had only clarified the distinction between Manpower Recruitment Agency and Manpower Supply Agency. It is his submission that the appellant has got himself registered with the Assistant Labour Commissioner and registered with licensing authority under the Contract Labour Act and for doing the work of loading and unloading in the establishment of M/s. Aspin Wall & Co., it cannot be interpreted that the said registration with the Assistant Labour Commissioner would directly indicate that the appellants are contractors and supplying labour. On limitation it is his submission that the service tax registration was taken by the appellants under the categories of provider of cargo handling services and GTA services and department was aware of the activities undertaken by the appellant in the godown of M/s. Aspin Wall & Co. It is prayed that the impugned orders be set aside and appeal be allowed. 4. Learned SDR on the other hand would submit that the contentions of the appellants cannot be accepted as the adjudicating authority has taken into consideration the entire facts of the case in both the appeal....
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.... is as under: "any service provided to a client, by a manpower recruitment or supply agency in relation to the recruitment or supply of manpower, temporarily or otherwise, in any manner." 8. From the plain reading of the above reproduced definitions in the Finance Act, 1994, we find that the activity should be providing of any service directly or indirectly in any manner for recruitment or supply of manpower temporarily or otherwise to a client in order to get covered under the said definition. There should be either a recruitment or supply of manpower temporarily or other-wise. We find from the records that M/s. Aspin Wall & Co. had given the contract as under : "W.O. No . 004/03-04 M/s. Divya Enterprises, Bykampady, Mangalore Dear Sirs We refer to the various discussions we had with your partners regarding the godown handling operations at Bykampady location. Accordingly, we are pleased to award you the godown handling work in the following godowns with retrospective effect from the handling of my Mariupol that arrived new Mangalore Port on 3-10-2003. Balenja/Somayaji/Port Workshop godowns Filling bulk fertil....
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....ld be decisive." (p. 253) An identical view was taken by Hon'ble Supreme Court in the case of Kone Elevators (India) Ltd. (supra) and Mahindra & Mahindra Ltd. (supra) in a similar issue. The ratio of all the three judgments of the Hon'ble Supreme Court, is that the tenor of agreement between the parties has to be understood and interpreted on the basis that the said agreement reflected the role and understanding of the parties. The said ratio applies to the current case in hand. We find that the entire tenor of the agreement and the purchase orders issued by the appellants' service recipient clearly indicates the execution of a lump sum work. In our opinion this lump sum work would not fall under the category of providing of service of supply of manpower temporarily or otherwise either directly or indirectly. 10. On perusal of the records and the submissions of learned SDR on the Master Circular dated 23-8-2007, we find that the issue raised at clause 010.02 is as under : "Business or industrial organizations engage services of manpower recruitment or supply agencies for temporary supply of manpower which is engaged for a specified period or for completion of p....