TaxTMI 
TaxTMI 
2014 (12) TMI 42
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....olhapur 1,18,01,008/- Kisanveer Satara SSK Ltd. 02 ST/139/10 Rajarambapu S & SSS 08/ST/2009 dated 31-12-2009 CCE, Kolhapur 3,03,30,643/- Rajarambapu Patil SSK Ltd. 03 ST/140/10 Sahyadri OUTVYGSS Ltd., l/ST/2009 dated 15-12-2009 CCE, Kolhapur 3,89,76,775/- Sahyadri SSK Ltd. 04 ST/142/10 Shree Chh. Shahu SSOT/VS Ltd. 7/ST/2009 dated 31-12-2009 CCE, Kolhapur 1,90,68,636/- Chh. Shahu SSK Ltd. 05 ST/143/10 Padmabhushan Vasantdada Patil OTVSSM 2/ST/2009 dated 30-12-2009 CCE, Kolhapur 65,89,503/- Chh. Rajaram SSK Ltd. 06 ST/150/10 Sadashivrao Mandlik OTVSM 4/ST/2009 dated 30-12-2009 CCE, Kolhapur 1,09,95,261/- Sadashivrao Mandlik Kagal Tal. SSK Ltd. 07 ST/455/10 CCE, Kolhapur P-II/AV/ 89/2010 dated 18-6-2010 CCE (A), Pune-II 20,29,462/- Kisanveer Satara SSK Ltd. 08 ST/456/10 CCE, Kolhapur P-II/AV/ 93/2010 dated 18-6-2010 CCE (A), Pune-II 24,31,525/- Balasaheb Desai SSK Ltd. 09 ST/464/10 CCE, Pune-II P-II/AV/ 92/2010 dated 5-7-2009 C....
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....se, handling of loose bagasse, collecting/removing/disposal of boiler ash, supply of wood for burning in the boiler, handling/stacking of compost, disposal of spent wash by spraying on the press mud, stitching of sugar bags, etc. The department was of the view that the activities undertaken by the appellants amount to supply of manpower and therefore, the appellants are liable to discharge service tax on the said activity under the category of "supply of manpower service" on the total consideration received from the sugar factories. Accordingly, notices were issued and demands were confirmed along with interest thereon and penalties were also imposed. Aggrieved by these decisions, the appellants are before us. In respect of the 5 appeals filed by the Revenue, the respondents also undertook harvesting and transportation of sugarcane as described above and the demands for service tax were made under "manpower supply service" by the adjudicating authority against which appeals were filed before the Commissioner (Appeals). The said Commissioner, after examining the contracts/agreements entered into by the respondents came into the conclusion that the activity did not come under the pur....
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....cases. It is also submitted that the activity of harvesting and transportation of sugarcane would come under the category of "Business Auxiliary Service" (BAS). This Tribunal, in identical circumstances, in the cases of Amrit Sanjivni Sugarcane Transport Co. Pvt. Ltd. v. CCE, Aurangabad vide Order No. A/532/13/CSTB/C-I, dated 2-4-2013, Samarth Sevabhavi Trust v. CCE, Aurangabad vide Order No. A/1158/13/CSTB/C-I, dated 24-5-2013 [2014 (36) S.T.R. 83 (Tri. - Mum.)] and Bhogavati Janseva Trust and Ors. v. CCE, vide Order No. A/1274-1279/13/CSTB/C-I, dated 12-6-2013 [2014 (34) S.T.R. 410 (Tri. - Mum.)] have held that the activities undertaken by the appellants merit classification under BAS and not under supply of manpower service. Accordingly, the ld. Counsel pleads for allowing the appeals. 3.2 In respect of jobs such as bailing of bagasse, handling of sugar, stitching of sugar bags, feeding of sugarcane in the sugar mill, etc., the ld. Counsel submits that the appellant had undertaken these works for which consideration was paid either in terms of tonnage of the material handled or in terms of the quantity of goods handled. This would show that the activity undertaken by the....
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....bsp; The commission/incentive payable to the contractors will be handed over by Karkhana to the Sanstha which further has to be paid by Sanstha. 5. Karkhana will not be responsible for the injury if any, caused to any cane cutting labourer while doing the cane cutting. 6. For arranging the cane cutting and transportation, the Karkhana will pay the consideration to the Sanstha as and when demanded by the Sanstha. 7. The Sanstha also will carry out the jobs of handling of sugar, feeding of sugarcane in the sugar mill, cleaning of parking yard of vehicles transporting sugarcane, loading/unloading/handling of pressmud, baling of bagasse, handling of loose bagasse, collecting/removing/disposal of boiler ash, supply of wood for burning into the boiler, handling/stacking of compost, disposal of spentwash by spraying on the pressmud, stitching of sugar bags. The rates for the said job will be decided by the Karkhana and Sanstha. 8. The karkhana will retain 15% amount of every bill raised for cane cutting transportation job a....
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....particular activity undertaken by the parties to the contract would be decisive." If we apply the ratio of the above decision to the facts of the case before us and to the contracts entered into by the appellant-assessees with the sugar factory, the tenor of the agreement is for the specific tasks of "harvesting of sugarcane and transportation of the same from the farmers' fields to the sugar factory". The agreement is not for supply of any manpower to the sugar factory. The consideration paid also has no nexus to the manpower employed. 5.3 As per Section 65(68) of Finance Act, 1994 ' "manpower recruitment or supply agency" means any person engaged in providing any service, directly or indirectly, in any manner for recruitment or supply of manpower, temporarily or otherwise to any other person' and the taxable service is defined under Section 65(105)(k) as "service rendered to any person by a manpower recruitment or supply agency in relation to the recruitment or supply of manpower, temporarily or otherwise, in any manner". The appellants are not manpower recruitment agencies as they do not recruit any persons; they also do not supply manpower to the sugar factory. What ....
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....or processing of goods for, or on behalf of, the client; or (vi) provision of service on behalf of the client; or (vii) a service incidental or auxiliary to any activity specified in sub-clauses (i) to (vi), such as billing, issue or collection or recovery of cheques, payments, maintenance of accounts and remittance, inventory management, evaluation or development of prospective customer or vendor, public relation services, management or supervision. Sub-clause (iv) deals with procurement of goods or services, which are inputs for the client. Sugarcane is an input for the client, the sugar factory, and sugarcane is 'goods'. Though the appellants do not procure these goods, they are rendering a service incidental or ancillary to such procurement and therefore, the activity undertaken by the appellants in harvesting and transporting the goods comes under sub-clause (vii) of Section 65(19). Since the impugned demands have been raised under the category of manpower supply or recruitment agency services, such demands have no legal basis. 5.5 In respect of the appeals filed by the Revenue, the lower appellate authority, after examining the c....