TaxTMI 
TaxTMI 
2023 (9) TMI 1191
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....Learned Chartered Accountant appearing on behalf of the appellant submits that the job performed by the appellant is loading, unloading of goods at port, cutting of bags, spreading of zola, cleaning of jetty etc. at Kandla port to various clients. The said service is correctly classifiable under Cargo Handling Service. He submits that merely because the appellant have deputed some manpower for performing his job to the client, the department has wrongly interpreted that the appellant had provided the Manpower Recruitment or Supply Agency Service. It is his submission that the contract with their client is on work basis and not on the basis of labour deputed for the job. The client is concerned with the particular job and not concerned with the number/skill of labour deployed for the job. He also submits that the control of the manpower is undisputedly with the appellant and not with the service recipient, therefore, the service is not classifiable under Manpower Recruitment or Supply Agency Service. He also refers to the confirmation letter from the various clients regarding nature of service whereby he submits that the service which the appellant had provided is particularly work ....
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....aid job was with the appellant and thus the client was not concerned about the number of manpower, type of manpower, Man hour etc. Therefore, the nature of work is cargo handling service provided at the port and not Manpower Recruitment or Supply Agency Service. 4.2 We further noticed from the invoices of the appellant raised to their client that the service is not of manpower recruitment or supply agency service. In this regard the sample of invoices are reproduced below:- 4.3 From the above sample invoices, it is clear that the appellant have been charging their service charges on the basis of metric tons of the goods handled by them and not on the basis of wages of laborers deployed for the job. The above invoices supported the claim of the appellant that the service was correctly classifiable under cargo handling service and not under Manpower Recruitment or Supply Agency Service. The appellant have admittedly paid service tax on cargo handling services except in case of export of cargo which is not taxable. 4.4 The identical issue has been considered in various judgments wherein it was viewed that in case the contract is for a job and not for supply of manpower their ....
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....for wagon loading Rs. 09.00 per mt High stacking above 15 tier Rs. 03.00 per mt Employment of casuals for tipper cleaning, and in the plant, Providing shovels buckets etc Rs. 03.00 per mt Service charges Rs. 03.50 per mt Side godowns : Unloading and stacking wagon cargo Rs. 12.75 per mt Dc stacking and loading Rs. 10.00 per mt Re standardization of c/t bags Rs. 25.00 per mt Casuals for sweeping collection Rs. 00.50 per mt Service Charges Rs. 03.00 per mt Gunny handling Unloading HDPE Bales Rs. 04.00 per bale Reloading of HDPE ales 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 c....
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.... 1. Handling Services, Above Schedule of Rates (Appendix VI) : 162% (one hundred sixty-two percent); 2. Transportation to and from goodshed to Warehouse and vice versa: Rs. 54/- (Rupees fifty four only) per MT ONLY ON POINT TO POINT BASIS. 3. Internal Transportation : Rs. 20/- (rupees twenty only) per MT only on point to point Basis. You are advised to comply with the following requirements by 31-12-2004 :- 1. Execute an agreement on a stamp paper of appropriate 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 Cooperative Society Ltd., we find from the records and the documents produced before us that they....
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....er the category of providing of service of supply of manpower temporarily or otherwise either directly or indirectly. 10. On perusal of the records and the submissions of learned SDR on the Master Circular dated 23-8-2007, we find that the issue is raised at clause 010.02 is as under : Business or industrial organizations engage services of manpower recruitment or supply agencies for temporary supply of manpower which is engaged for a specified period or for completion of particular projects or tasks. Whether Service tax is liable on such services under manpower recruitment or supply agency's services? In the case of supply of manpower individuals are contractually 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 age....
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....cruitment or supply of manpower, temporarily or otherwise, in any manner." From the plain reading of the above reproduced definitions in the Finance Act, 1994, we find that the activity should be providing of any service directly or indirectly in any manner for recruitment or supply of man-power temporarily or otherwise to a client in order to get covered under the said definition. There should be either a recruitment or supply of manpower temporarily or otherwise. We find from the records that M/s. Aspin Wall & Co. had given the contract as under : "W.O. No . 004/03-04 M/s. Divya Enterprises, Bykampady, Mangalore Dear Sirs We refer to the various discussions we had with your partners regarding the godown handling operations at Bykampady location. Accordingly, we are pleased to award you the godown handling work in the following godowns with retrospective effect from the handling of my MARIUPOL that arrived new Mangalore Port on 3-10-2003. BALENJA/SOMAYAJI/PORT WORKSHOP godowns Filling bulk fertilizers into bags, weighing, standardization stacking, and reloading to trucks Rs. 47.50 per mt. High stackin....
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.... issue. The ratio of all the three judgments of the Hon'ble Supreme Court, is that the tenor of agreement between the parties has to be understood and interpreted on the basis that the said agreement reflected the role and understanding of the parties. The said ratio applies to the current case in hand. We find that the entire tenor of the agreement and the purchase orders issued by the appellants' service recipient clearly indicates the execution of a lump-sum work. In our opinion this lump-sum work would not fall under the category of providing of service of supply of manpower temporarily or otherwise either directly or indirectly. 10. On perusal of the records and the submissions of learned SDR on the Master Circular dated 23-8-2007, we find that the issue raised at clause 010.02 is as under : Business or industrial organizations engage services of manpower recruitment or supply agencies for temporary supply of manpower which is engaged for a specified period or for completion of particular projects or tasks. Whether Service tax is liable on such services under manpower recruitment or supply agency's ser ices In the case of supply of manpower individuals a....
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....emanded and the penalties of Rs. 1,30,907/-, Rs. 1000/- u/s 77 and Rs. 20,90,772/- u/s 78. 2. Vide the impugned order the Commissioner found that DRC had undertaken the following work and at the rates prescribed in the contract it had entered into with M/s. India Cements Ltd., 1. Loading of cement bags into closed wagons @ Rs. 14.10 per MT 2. Wagon door cleaning, sealing and riveting etc. Rs. 1500/- per rake consisting of 30 boxes. Rs. 1950/- per rake consisting of more than 30 boxes 3. Complete spillage recovery (3%) of total quantity Rs. 38/- per M.T 4. Drawing of bags to the stenciling floor Rs. 40/- when conveyed through conveyor. Rs. 48/50 when conveyed manually 5. Wagon door opening/wagon cleaning Rs. 95/- per day Rs. 75/- per day As per Section 65(68) of the Finance Act, 1994 "manpower recruitment or supply agency' with effect from 16-6-2005 meant "any commercial concern engaged in providing any service, directly or indirectly, in any manner for recruitment or supply of manpower temporarily or otherwise, to a client." As per the same Section, "manpower recruitment or supply agency" with ....
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....he appellant have been paying service tax on the same service under cargo handling service and discharged the service tax. The details of nature of service, payment of service tax etc. was declared in their ST-3 return. Nothing prevents the department from taking action against the appellant on the basis of the details provided in ST-3 returns, therefore, there is absolutely no suppression of fact on the part of the appellant. Hence, the demand is also hit by limitation for the extended period. 6. As per our above discussion and finding we are of the considered view that the demand of differential service tax confirmed by the lower authorities is not sustainable. Hence, the impugned order is set aside. Appeal is allowed. (Pronounced in the open court on 25.08.2023 ) ============= Document 1 Nidhi Shipping Date : 25-03-2013 Те The Hon'ble Commissioner (Appeals). Central Excise. Rajkot Sub: Confirmation in the case of M/s. AVB Handling, Gandhidham Respected Sir. With reference to above subject matter, we hereby would like to confirm as under: 1. That, we have business relations with M/s. AVB Handling for the year 2006-07 to 2010-11. 2....
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.... goods in the vessels. Clearing of jetty before the goods is discharged from truck and also after loading of goods in the vessel. 3. That M/s. A VB Handling carries out the work through their labors who worked under direction, supervision and control of M/s. A VB Handling. 4. That, we are not concerned with no. oflabors employed but our contact is for execution of specific work. 210243 Sunder Park, 1st Floor, Plot No. 65, Tagar Road, Gendhan ch 370 201 Ph: +91-275-222919, 1995, 2991298 Fax:+91-2835-232957 Email:[email protected] labile 98250 1996 Scanned with CamScanner Document 3 is ॥ શà«àª°à«€ SHREEJEE LOGISTICS PRIVATE LIMITED 5. We have generally paid them charges on per labor basis for the specific work carried out for specified quantity by the no of labors. Kindly find the above detail as per your requirement and do the needful. Thanking You. You're sincerely, PRIVATE IMITED 212713. Sunder Park, 1st Floor, Plot No. 95, Tagor Road, Gandhidham (Kitch) 370 201. Ph.: +91-2836-222919, 229919, 227119, 275616 Fax: +91-2836-232957 E-mail: [email protected] Mobile: 98250 89965 CS Scan....