TaxTMI 
TaxTMI 
2023 (9) TMI 652
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....ce' to M/s Intricast Private Limited hence, the service tax is leviable on the amount paid to the appellant for these services. The adjudicating authority dropped the proceedings of the show cause notice on the ground that the appellant had executed lump sum work/ job and execution of such lump sum work/ job work not covered under 'Man Power Recruitment or Supply Agency Service'. Being aggrieved by the order-in-original, Revenue filed appeal before the Commissioner (Appeals) who allowed the Revenue's Appeal and held that the appellant is liable to pay service tax under 'Man Power Recruitment or Supply Agency Service'. Therefore, the appellant has filed the present appeal. 2. Shri S. Bissa, learned counsel appearing on behalf of the appellant submits that learned Commissioner (Appeals) has committed an error in confirming the service tax liability on the appellant under the category of 'Man Power Recruitment or Supply Agency Service' because the appellant has received payment on the quantum of the work performed i.e. quantities of castings on which the wax repairing or assembly work was done, and not on man-hour or man-day basis and therefore, such activities were not in the nature....
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....ricast Private Limited. To understand the actual nature of the work and the consideration made by the service recipient it is necessary to go through the work order and invoices which are scanned below: The relevant clauses of the work order is extracted herein below: "INTRICASE PVT LTD STEEL AND ALLOY STEEL INVESTMENT CASTING MANUFACTIRERS W.O. NO ITL-002/2011-12 DATE 01.04.2011 TO Mr Naresh K Solanki Sarvoday Society, Opp. Aero cast private limited, Veraval (Shapar) Subject: Work order of wax repairing and assembly department work 1. Complete details of the work under the work order After wax injection, all the work related to repairing, assembling and wax preparation and runner making of the injected pattern should be done by wax as per the target and all of them should be kept safely in the right place, housekeeping should be informed during the work. 2. Work order price detail:- The work done by your department is a part of the company's scheduled production process and You will be paid for this work order at the rate of Rupees 2.24 (Rupees Two and Twenty Four Paisa) per kg on the quantity of castings produced and dispatched per month through all such....
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....shree Enterprise vs CCE Pune-I "5. We find from the show cause notice that though the department has proposed the service of the appellant as classifiable under Manpower Recruitment or Supply Agency service but no evidence was adduced to conclusively hold that the service is of Manpower Recruitment or Supply Agency service. The figure of the service tax was retrieved from the bank account which does not show what is the basis of the service charge by the appellant to the service recipient. Therefore, we do not find any material evidence in the show-cause notice to hold that the appellant are providing Manpower Recruitment or Supply Agency service. On the contrary, the appellant submitted an agreement with the service recipient. The relevant clause of the agreement are reproduced below :- "This AGREEMENT made at Pune on this 1st day of April month of the year Two Thousand Seven BETWEEN Kalyani Lemmerz Limited incorporated under the Companies Act, 1956 having its office and chief place of business at Kuruli Chakan (hereinafter referred, to as the "Company") represented by Kalyani Lemmerz Limited, on the one part' and M/s. Dhanashree Enterprises, a represented by Proprietor (h....
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....penses that may be incurred by the contractor and the contractor shall not be entitled to make any other demands monitory or otherwise whatsoever from the company during the term of agreement. 3] CONTRACTOR'S RESPONSIBILITY : (a) For performing the above said work the contractor should arrange to sufficient workforce to carry out the task as per requirement time to time. (b) The contractor shall employ sufficiently experienced person to undertake the supervision of work being carried out by the per piece basis. (c) The quality and quantity of work at all stages should be as per the standard laid down in Annexure "A". (d) The contractor shall ensure that he complies with and observes all the provisions of the Contract Labour (Reg. & Abol.) Act, 1970. The Minimum Wages Act, 1948, Payment of Wages Act, 1936, Employees Provident Fund and Misc. Provisions Act 1952, the E.S.I. Act, 1948:' and such other statutory encasements, rules and regulations laid down by the Govt. or local body in force/coming into force which may apply to this agreement and any liability on account of non- compliance or violation thereof shall be the contractor's responsibility. (e) The workmen....
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....an be seen that the service is the production ancillary associates and rates for the service is on per piece rate of the pieces produced. Therefore the appellant's job is not to depute the labour to the service recipient, irrespective of the number of labours, the respondent has to perform the job of producing piece for the service recipient and the rate is on per piece basis. Therefore, the wages/salary or emolument paid to the labour is not relevant to the service recipient. That is the responsibility of the appellant. Against this evidence the department right from show-cause notice up to the Commissioner (Appeals) could not bring any material to show that there is arrangement between the appellants and service recipient there is arrangement of supply of manpower. We also consider the decision of this Tribunal in the case of M/s. Bhagyashree Enterprises & Sonawane Indl. (supra) wherein identically worded agreement was existing that too with the same service recipient i.e. Kalyani. Hence the identical facts were involved. Therefore the ratio of that decision is squarely applicable in the facts of the present case also. As per our above discussion, we find that since the departmen....
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.... Unloading and stacking wagon cargo Dc stacking and loading Re standardization of c/t bags Casuals for sweeping collection Service Charges Gunny handling Unloading HDPE Bales Reloading of HDPE ales Rs. 13.75 per mt Rs. 06.00 per mt Rs. 09.00 per mt Rs. 03.00 per mt Rs. 03.00 per mt Rs. 03.50 per mt Rs. 12.75 per mt Rs. 10.00 per mt Rs. 25.00 per mt Rs. 00.50 per mt Rs. 03.00 per mt Rs. 04.00 per mt Rs. 04.00 per mt 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 standard....
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....t 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 Cooperative 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 Cooperative Society Ltd., which is annexed at Page Nos. 170 and 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 reproduced facts from the entire case papers, we find that the contract which has be....
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....ally employed by the manpower 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. 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 man power, 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 is no agreement for utilization of services of an individual but a job/lump-sum work given to the appellants....
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.... factory and the scope of definitions mentioned above, it appears that the Appellate Tribunal has rightly come to the conclusion that the respondent's work, though provided services to the sugar factory, did not come within the mischief of the term "Manpower Recruitment or Supply Agency". 8. This interpretation of agreement between respondents and its principal is in tune with the judgment of Supreme Court in the case of Super Poly Fab-riks Ltd. v. Commissioner of Central Excise, Punjab reported in 2008 (10) S.T.R. 545 (S.C.). Paragraph No. 8 of the said judgment can be relied upon to drag the point at home, which reads as under :- "8. There cannot be any doubt whatsoever that a document has to be read as a whole. The purport and object with which the parties thereto entered into a contract ought to be ascertained only from the terms and conditions thereof. Neither the nomenclature of the document nor any particular activity undertaken by the parties to the contract would be decisive." 9. In view of the above, it is clear that no manpower has been supplied by the respondents to the sugar factory to constitute supply of manpower. This Court had an occasion to deal with the sim....