TaxTMI 
TaxTMI 
2023 (8) TMI 249
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....icating Authority vide Order-in-Original dated 07.04.2014. The Adjudicating Authority vide his Order-in-Original dated 07.04.2014 dropped the proceedings. Being aggrieved by the Order-in-Original the revenue filled an appeal before the commissioner (Appeals), which was allowed by the Learned Commissioner (Appeals) except the setting aside penalty under Section 76. Being aggrieved by the said Order-in-Appeal the present appeal is filled by the appellant. 2. Shri Ambar Kumarawat Learned Counsel, appearing on behalf of the appellant submits that the Adjudicating Authority has rightly dropped the demand, Consideration the fact that the appellant have not provided the service of 'Manpower Recruitment and Supply Agency Services', whereas, the appellant have undertaken the job of unloading of scrap and sorting thereof. 2.1 He submits that the charges for the job were also collected on per Kg basis. Therefore, the appellant have not supplied the manpower to the recipient. Whereas, they have under taken a specific job irrespective of how many manpower or man hours involved in the job. He further submits that the controls of the man power was with the appellant and not transferred to t....
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....by the appellant is sorting, shifting and cleaning of container's materials and the charges for the same was claimed 1 rupee per kg basis. This clearly shows that the service recipient is not concern about the number of manpower deputed for the job, whereas the service recipient has assigned the job to the appellant only in respect of sorting, shifting and cleaning of container's materials. The control of the manpower in this fact is obviously with the appellant and not with the service recipient. 4.3 In this fact it is clear that the appellant have not provided the services of 'Manpower Supply or Recruitment Agency Services', this fact of the case is not under dispute as on this basis only the Adjudicating Authority has dropped the proceeding initiated in the show cause notice. This issue has come up time and again before this Tribunal. This Tribunal in the case of Ritesh Enterprises has taken the following view: 6. We have considered the submissions made at length by both sides and perused the records. The question that arises for consideration is whether the services rendered by the appellants are classifiable under the heading "manpower recruitment & supply agency"?....
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.... Service Charges - Rs. 03.00 per mt. Gunny handling Unloading HDPE Bales - Rs. 04.00 per bale Reloading of HDPE Bales - Rs. 04.00 per bale 1. The rates given above shall be firm without any escalation during the tenure of this work order. However the company reserves its right to extend the same for further period on mutual agreement." 2. The company is at liberty to enter into parallel contract with any other party, if required. 3. The overall interest of the company should be safeguarded by you and loss/damage to the company due to your negligence/fault shall be recovered from you. 4. Proper accounts of the cargo/empty bags shall have to be furnished to us on completion of each operations. 5. You have to arrange round the clock work in the Plant and keep in touch with our officials, supervisors for better coordination in arrival of bulk prompt standardization etc., 6. The labour utilized by you for the handling operations under this work order shall be treated as your employees and the company shall have no responsibility whatsoever in this regard. You shall comply with all statutory requirements,....
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....opriate value but not less than Rs. 100 as per the latest stipulation of Government of Karnataka along with two witnesses to the agreement. 2. The Security Deposit of Rs. 60,000 (Rupees sixty thousand only) in the form of Demand Draft. 3. Obtain the license under Contract Labour (R&A) Act, 1970 from the concerned - RLC(C)/ALC(C) in case 20 or more labourers are engaged on any day during the tenure of the contract." 8. As regards the works executed by the appellant M/s. Karwar Dock & Port Labour Co-operative Society Ltd., we find from the records and the documents produced before us that they were intimated about the berthing of vessels at various ports and they were given a lump sum contract for cargo handling, i.e., loading and unloading of the goods into the said vessels. We perused the invoices issued by the appellant M/s. Karwar Dock & Port Labour Co-operative Society Ltd., which is annexed at Page Nos. 170 & 171 of the appeal memoranda and noted that the invoices are raised as "cargo handling for granite export loading of Indian rough granite blocks" for a lump sum amount, charged per Metric Tonne. 9. On a careful consideration of the above ....
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....ly employed by the man-power recruitment or supply agency. The agency agrees for use for the services of an individual, employed by him to another person for a consideration. Employer- employee relationship in such case exists between the agency and the individual and not between the individual and the person who uses the services of the individual Whether service tax is liable on such service under manpower recruitment or supply agency's services Such cases are covered within the scope of the definition of the taxable service [section 65(105)(k)] and, since they act as supply agency, they fall within the definition of "manpower recruitment or supply agency" [section 65(68)] and are liable to service tax 11. It can be seen from the above reproduced portion of the Master Circular that it is in respect of supply of manpower which is engaged for specified period or for completion of particular projects or tasks. The clarification, is in case of supply of manpower, it can be seen that the clarification specifically reads that the agency agrees for use of services of an individual to another person for a consideration as supply of manpower. In the cases in hand, there....
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....e. M/s. Nirma Ltd. In this regard, he also submitted the details of payment of excise duty of M/s. Nirma Ltd from PLA/cash. This prima facie show that it is a case of Revenue neutral and by not paying the service tax by the appellant the Government Exchequer is not at any loss, however, since, we have already decided the issue on merit, we are not giving our concluding opinion on Revenue Neutral position. The issue of jurisdiction raised by the appellant is also kept open. As per our above discussion the impugned order is not sustainable. Hence, the same is set aside. The appeals are allowed with consequential relief, if any, in accordance with law. 6. In view of above decision of the Tribunal in the appellant's own case on the same issue, the issue in the present case is no longer res integra. The only difference in the present case and the case decided supra is the difference of period. However, there is no change in the facts and the law point, therefore, the Tribunal's decision given by Order dated 18.10.2019 is squarely applicable in the present case. Accordingly, the impugned orders are set aside. The appeals are allowed." 4.5 Same view was expres....