2023 (4) TMI 547

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....er Lorries for providing the above services, along with required labourers. 2. When the accounts of the Society were audited, the Officers have noticed certain payments being made by the Society to the appellant, who is a sub-contractor, during the period from 2007-08 to 2009-10. Consequently, a Show Cause Notice dated 29.09.2011 was issued to the appellant inter alia proposing demand of Service Tax under 'manpower recruitment or supply agency' service by invoking the extended period of limitation. 3. After due process of law, the Order-in-Original No. 26/2013-ST dated 27.03.2013 came to be passed, confirming the demand of Service Tax along with interest, including the imposition of penalties under Sections 77 and 78 of the Finance Act, 1994. On the appellant's appeal, the lower appellate authority vide order impugned herein has upheld the order passed by the adjudicating authority. 4.1 In the grounds-of-appeal, the appellant has submitted that he was engaged by the society only for the purpose of unloading of coal from the railway wagons, which was shifted to the coal yard using hired JCBs, Trucks and Tipper Lorries with the help of required labourers for the said service....

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....imperative to invoke the extended time-limit, with the burden of establishing the suppression lying on the Revenue. 4.4 It was also submitted that the provisions of Section 80 of the Act would apply in his case as no penalty shall be imposed on an assessee for any failure if it is proved that there was reasonable cause for the said failure. As the appellant had not suppressed any facts with an intention to evade payment of tax, he has requested for waiver of penalties in terms of Section 80 of the Act. 4.5 He has also referred to the provisions of Section 67 of the Finance Act, 1994 which provides for treating the gross-amount received as inclusive of tax for computation of the demanded tax. 4.6 Shri G. Natarajan, Learned Advocate appearing for the appellant, firstly reiterated the submissions as incorporated in the grounds-of-appeal. Then, he has drawn our attention to the decision rendered in the case of M/s. Ritesh Enterprises v. Commissioner of Central Excise, Bangalore [2010 (18) S.T.R. 17 (Tribunal - Bangalore)] wherein it has been held: - "9. On a careful consideration of the above reproduced facts from the entire case papers, we find that the contract whic....

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...., all of which require sufficient manpower, which has been supplied by the appellant. He submitted that shifting of coal necessarily involved manual labour, which was supplied by the appellant to M/s. BHEL, Trichy; as such, the service rendered is not solely concerned with transportation of coal, but involved employing sufficient manpower. He has thus argued that the Service Tax demand is legally sustainable. 5.2 He would contend that the services of the appellant could not come under 'goods transport agency' as a goods transport agency means "any person who provides service in relation to transport of goods by road and issues a consignment note, by whatever name called". As the consignment note was not issued by the appellant, the service could not be considered as 'goods transport agency' service. 6. We have heard both the sides. 7. The main issue that has to be decided in this appeal is: whether the services rendered by the appellant are classifiable under manpower recruitment or supply agency service? 8.1 "Manpower recruitment or supply agency" is defined under Section 65 (68) of the Finance Act, 1994, which reads below: - "(68) "manpower recruitment or ....

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....gh consignment note was not issued by the appellant for transportation of the coal to be classified as 'GTA service', the classification of the services provided by him are not under manpower recruitment or supply agency service. 11. The appellant has repeatedly put forth that he has been paid for the services rendered on the basis of quantity of coal handled, by M/s. BHEL Complex Co-operative Labour Contract Society Ltd., Trichy. When specifically asked for an Agreement copy by the appellant with M/s. BHEL Complex Co-operative Labour Contract Society Ltd., the Learned Advocate for the appellant has stated that such a written contract was not entered into. However, he has stated that the appellant was paid on the basis of quantity of coal unloaded and transported. The documents extracted supra reveal that both the Society and the appellant were paid and consideration for the services rendered was received on the basis of quantity of coal handled. We find that the decision rendered by CESTAT, Bangalore in the case of M/s. Ritesh Enterprises (supra) is squarely applicable to facts of the present case. The work that was given to the appellant was for unloading, transportation and s....