TaxTMI 
TaxTMI 
2011 (5) TMI 174
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....d Welfare) Act, 1981 which Act was enacted for regulating the employment of Private Security Guards employed in factories and establishments in the State of Maharashtra and for making better provisions for their terms and conditions of employment and welfare, through the establishment of a Board therefor, and for matters connected therewith". The Board brought a scheme called "The Maharashtra Private Security Guards (Regulation of Employment and Welfare) Scheme, 2002" under section 4(1) of the said Act (hereinafter referred to as "the Scheme"). Under this scheme, the State Government implemented several welfare measures for security guards. The minimum wages and allowances payable to security guards by establishments (principal employers) to security guards were prescribed for the purpose. Where the establishments (principal employers) were already paying such wages and allowances or more than that to the security guards, such establishments were entitled to exemption from coverage of the provisions of the Act. But such establishments and security guards employed by them were also required to be registered with the Board. Other establishments which did not pay wages and allowances ....
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....it should be a 'commercial concern'. It is submitted that the Board constituted under the Act has never been a 'commercial concern' inasmuch as its solitary function was to implement welfare scheme for security guards. It is argued that, without a 'commercial element' in the activity/transaction under consideration, nobody can be brought within the scope of "Security Agency" as defined under section 65 of the Finance Act, 1994. In this connection, the ld. counsel has claimed support from 2 decisions of the Hon'ble High Court of Mumbai viz. judgment dated 31-10-1990 in W.P. No. 1808 of 1987 (Hussen Mithu Mhasvdkar v. Bomhay Iron and Steel Labour Board) and judgment dated 13-10-1995 in W.P. No. 45 of 1991 (Krantikari Sureksha Rakshak Sanqhatna, Thane v. A.L. Alaspurkar. The ld. counsel has pointed out that the ratio of the first decision of the High Court was followed in the second case and it was held that Security Guards Board was not an "industry" under the "Industrial Disputes Act" and that, it was only a Statutory Authority in-charge of administering the "Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act, 1981" and "the scheme" provided thereunder su....
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....n the definition of "Security Agency" and, therefore, according to the ld.JCDR, the Security Guards Board is also liable to pay service tax, as they would fall within the meaning of "person" figuring in the definition of "Security Agency" as amended. It is submitted that the expression " business of rendering service" occurring in the above definition need not have a commercial connotation. According to the ld.JCDR, any tax or duty can come within the scope of the expression "business". In this connection, he has drawn support from the "Concise Oxford Dictionary of Current English". 9. The ld.JCDR has also relied upon the Board's instructions contained in F.No. 345/1/2007-TRU, dated 19-8-2008 wherein the question discussed was whether the 'Central Industrial Security Force' (CISF) can be considered as the provider of "Security Agency" service. The CBEC opined that it was appropriate for CISF, being the service provider, to deposit the service tax on taxable services such as security service, consulting service provided by them instead of asking the service recipient to deposit the service tax. In this connection, the ld.JCDR has referred to the 'statutory status' of CISF and the n....
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....ecurity agency". This definition reads thus : "'security agency' means any person engaged in the business of rendering services relating to the security of any property, whether movable or immovable, or of any person, in any manner and includes the services of investigation, detection or verification, of any facts or activity, whether of personal nature or otherwise, including the services of providing security personal". Undisputedly, the Board is a juristic person empowered to implement the scheme under the 1981 Act. The very preamble to the Act indicates that "it was enacted to regulate the employment of Private Security Guards employed in factories and establishments in the State of Maharashtra and for making better provisions for their terms and conditions of employment and welfare, through the establishment of a board therefor, and for matters connected therewith." We have already indicated the salient features of 'the Scheme'. Private establishments (referred to as "principal employers" under 'the scheme') are bound to get registered with the Board for the purpose of availing security service and ensuring minimum wages/allowances and other welfare measures for the security g....
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....12. As rightly pointed out by the ld.JCDR, the Order-in-Original and the Order-in-Appeal relied upon by the ld.counsel are easily distinguishable, both the orders involving consideration of the definition of "Security Agency" pre-amendment, during which period the definition had a 'commercial' touch. We are not impressed with the reliance placed by the ld. counsel on the judgments of the Hon'ble High Court. In one of those cases, the Hon'ble High Court held that the Security Guards Board was empowered to administer the law. There can be no quarrel with this decision. We have already understood that the appellant, in the process of rendering taxable service to private establishments, was also administering the law made by the State Legislature. In the other case considered by the Hon'ble High Court, it was held that Security Guards Board was not an "industry" for purpose of 'Industrial Disputes Act' and that it was only a 'statutory authority' enjoined by law to administer the 1981 Act. These decisions of the Hon'ble High Court would not go to support the appellant's case vis-a-vis section 65(94) of the Finance Act, 1994. The provisions under a taxing statute are altogether differen....