TaxTMI 
TaxTMI 
2023 (10) TMI 809
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....e indents received by the member stevedores the Appellant supply gear boys and the deck foreman and raise bills every fortnight on the service receivers at the rates decided by the association. (ii) The services of supply of man power was brought under Service tax net from 16.6.2005 under the category of 'manpower recruitment or supply agency' as defined u/s 65(68) of the Finance Act, 1994 and is a taxable service u/s 65(105)(k) of the said Act. From the activities of the Appellant, it appears that the said activity qualifies as a taxable service falling under the category of 'manpower recruitment or supply agency' and is liable to Service tax. (iii) The Appellant are also collecting membership fee from their members, whichappears to be liable for Service tax, under the category of 'Club or Association' services as defined u/s 65(25a) of the Finance Act, 1994 is a taxable service u/s 65(105)(zzze) of the said Act. (iv) The Appellant is not registered under the Service tax law and have consciously suppressed the fact of providing 'manpower recruitment or supply agency services' from the department with intention to evade payment of Service tax and thus, th....
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....our Board. ii. The practice prior to formation of the society was that the stevedores would provide their own labour for undertaking the said auxiliary jobs. As the stevedores were facing problems with labour, the members of the society decided to form a common pool of workers to undertake the said auxiliary jobs. iii. There are two categories of workers to undertake the said works viz. "gear boys and deck foreman". These two categories of workers, who were undertaking the said jobs for individual stevedores were absorbed in the common worker pool of the society. iv. The works undertaken by the gear boys is primarily to collect the gear such as slings etc., from the godown/office of the stevedore, supply them to the workmen on board the vessel and return the gear/slings etc., to the godown/office of the stevedore after completion of handling on board vessels. v. The works undertaken by the deck foreman is overall supervisions of all activities undertaken on the board the vessel by labour from Visakhapatnam Dock Labour Board and the gear boys. 6. From the above it can be seen that the Association has been formed for the mutual benefit of ....
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....hape to (an assembly, etc.)". Thus the word in its wider significance would include both, the idea of creating or establishing, and the idea of giving a legal form to, a partnership. The Bench of the Calcutta High Court in the case of R.C. Mitter and Sons v. CIT [(1955) 28 ITR 698, 704, 705] under examination now, was not, therefore, right in restricting the word "constitute" to mean only "to create", when clearly it could also mean putting a thing in a legal shape. The Bombay High Court, therefore, in the case of Dwarkadas Khetan and Co. v. CIT [(1956) 29 ITR 903, 907], was right in holding that the section could not be restricted in its application only to a firm which had been created by an instrument of partnership, and that it could reasonably and in conformity with commercial practice, be held to apply to a firm which may have come into existence earlier by an oral agreement, but the terms and conditions of the partnership have subsequently been reduced to the form of a document. If we construe the word "constitute" in the larger sense, as indicated above, the difficulty in which the Learned Chief Justice of the Calcutta High Court found himself, would be obviated inasmuch as....
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....y suppressed the fact of providing services of 'manpower supply', there is no cogent evidence brought on record either in the SCN or OIO to establish the charge of suppression. (ii) Since the Appellant was under a bona fide belief that the services provided to the members are not liable to Service tax, they have not charged any Service tax for the services. This fact is not under dispute. (iii) Even if the Service tax is charged by the Appellant to its members, the same qualify as 'input services' and is available as Cenvat credit to its members, which can be utilized by the members for discharging their output service tax liability. Thus, the present case is of revenue neutrality, there is no incentive, in whatever manner, either to the Appellant or its members to evade tax. In other words, the present case is being of revenue neutrality, the charge of suppressing the facts to evade payment of Service tax does not hold water and renders charge of suppression as illogical and meaningless. 9. The Appellant submits that the show cause notice in this case has been issued on 21.10.2010 for demanding the tax for the period from 16.06.2005 to 31.03.2010. In terms of ....
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....constituted by or under any law for the time being in force; or (ii) any person or body of persons engaged in the activities of trade unions, promotion of agriculture, horticulture or animal husbandry; or (iii) any person or body of persons engaged in any activity having objectives which are in the nature of public service and are of a charitable, religious or political nature; or (iv) any person or body of persons associated with press or media; 13. Learned AR further urges that the Appellant has not taken registration and has never complied with the provisions of the Act and its Rules. Accordingly, demand for extended period of limitation has been rightly invoked. 14. Having considered rival contentions, we find that admittedly the Appellant Association has been formed by the persons engaged in stevedoring and dock activities. In the very aims and objects, it is mentioned that as the members have been facing difficulties due to renting, behaviour of the labourers and collective bargaining as well as illegal strikes which each individual person engaged in stevedoring is unable to handle at its individual level. Accordingly, feeling the need for a c....