TaxTMI 
TaxTMI 
2024 (3) TMI 407
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and penal provisions etc. were also invoked in the impugned show cause notice. The matter reached up to the level of Commissioner (Appeals) where the Commissioner (Appeals) vide impugned order-in-appeal dated 29.08.2016 did not provide any relief to the appellant and therefore, they are before us against the above mentioned order-in-appeal. 2. Learned advocate appearing for the appellant has contended that the activity undertaken by the appellant does not fall under the service category of Manpower Recruitment or Supply Agency Service as the work provided by them was in the nature of job work and the manpower provided by the appellant has always remained under the control of appellant. The activities such as melting process of castings etc. were part of the manufacturing process undertaken by M/s. Intricast Pvt. Limited and for the work undertaken by the appellant a lump-sum payment of Rs. 3.70 per kg. of the casting was paid by the manufacturer M/s. Intricast Pvt. Limited. 3. Learned advocate has also submitted that this Tribunal in the case of Naresh K Solanki vs. CCE Rajkot vide Final Order No. 11927/2023 dated 12.09.2023 decided a similar matter where the assessee has been u....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r 1....... 2........ 3. The labourers, supervisors and any other persons hired by you for the above work shall be your employees/contractors and the company shall not have any responsibility for the same. You will have to comply with all the statutory provisions of the Government and your obligations like payment of provident fund, insurance of employees and other provisions and the company will be fully reserved from any liability in the same. 4. The necessary tools and materials for the work of wax repairing and assembly department will be provided by the company and they will have to be used as per the prescribed standards. 5. According to this work order, you, your hired workers, supervisors and any other persons will not have owner and worker relationship with the owner of our organization. 6....... 7........ 8........ 9........ 10. In case of rejection due to your negligence, the cost of that material will be deducted from your bill." In view of the invoice raised by appellant and work order it is absolutely clear that the appellant was assigned a particular job of various activities and the consideration for the same was fixed and paid on per KG basis. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n the period 1st April, 2007 to 31st March, 2008. AND WHEREAS after discussions and trial operations the company and the contractor agreed to enter into a contract on the same terms and conditions mentioned hereinafter. NOW THESE PRESENT WITNESSETH AND IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS :- 1] NATURE AND SCOPE OF WORK : (a) The contractor shall perform the work listed in the Annexure "A" which is part of this agreement and as directed by the concerned officers of the company from time-to-time. (b) The contractor will be available for the aforesaid Piece work on all working days/shifts and even on holidays if required. He will be carrying out jobs on job order basis and job charges will be paid on piece rate basis. (c) The contractor will be accountable for required quantum of units to produced within the span of time as be scheduled. He shall ensure that workmen employed by him possess qualification skill and fitness to undertake work of contractor. (d) The contract does not continue supply of labour as the object or order is for processing/producing the jobs on piece rate basis, using the labour who will be under your control, supervision....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ll other statutory dues that may become, due and payable by the contractor for the labour employed by him and maintain all such records as may be statutorily required and present the same to the officers of the company when required. (g) The contractor shall during the term of this agreement, at his cost insure all workmen in his employment and connected with the execution of this contract against all accidents fatal or otherwise, injuries that may be suffered by them and all claims arising there from shall be concluded by the contractor directly. (h) The contract labour and other supervisory staff engaged by Party No. 2 shall conduct themselves properly while on the premises of the party No. 1 and shall maintain absolute discipline during working hours and Party No. 2 shall ensure that the labour employed by him shall maintain discipline and proper conduct during working hours on the premises of Party No. 1. Party No. 2 shall take such necessary steps to deal with any person employed by him not complying with the terms mentioned in (h) above. He shall also see that recurrence in misconduct or misbehavior of the contract labour is not repeated on the premises of part No. 1. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... records. The question that arises for consideration is whether the services rendered by the appellants are classifiable under the heading "manpower recruitment & supply agency"? 7. The definition of the manpower recruitment or supply agency under Section 65(105) reads as under :- "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." The taxable service liable for Service tax is also defined under Section 65(105)(K) which is as under : "any service provided to a client, by a manpower recruitment or supply agency in relation to the recruitment 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 gi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....gainst any claims arising as a result of your failure to comply with such formalities. 7. Only 90% of the charges at the maximum will be paid to you for the completed work on weekly basis. The balance shall be released on satisfactory completion of the work shipwise/commodity wise and on your submitting the relevant bills. The company shall deduct 5% from your bills towards security deposit and the same shall be kept in your running account till a total security of 1.5 lakhs is maintained. 8. The Company reserves its right to terminate this work order without assigning any reason by giving you one week's notice. Please sign and return duplicate copy of this work order as a token of your acceptance of the rates terms and conditions mentioned hereinabove." Contract awarded by Central Warehousing Corporation is as under : "No. H-700 (22) MLR-RI/2005/6473 Date 28-12-2004 M/s. Ritesh Enterprises Vijay Mahal, Suratkal-574158. Sub : Appointment of H&T contract on adhoc basis at CW. Mangalore - Reg. Ref: 1. Tender No CWC/BLR/H-700(22)/04 dated 7-10-2004 2. Telegram dated 27-12-2004. Sir, Please refer to your tender referred above submitted and opened on 18-10-2004....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the reproduced contracts and the invoices issued by the appellants that the entire essence of the contract was an execution of work as understood by the appellant and the recipient of the services. We find that the Hon'ble Supreme Court in the case of Super Poly Fabriks Ltd. v. CCE, Punjab (supra) in paragraph 8 has specifically laid down the ratio which is as under : "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." An identical view was taken up by Hon'ble Supreme Court in the case of State of A.P. v. Kone Elevators India Ltd. (supra) and UOI v. Mahindra and Mahindra in a similar issues. 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 of parties. The said ratio applies to the current cases in hand. We find that t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....considered view that the reliance placed by the learned SDR and the learned Commissioner on the circular will not carry the case of the Revenue any further. 12. Accordingly in view of the above findings, we are of the view that the impugned orders are liable to be set aside and we do so. The appeals are allowed with consequential relief if any. Since we have disposed of the appeals on merits itself, no findings are recorded on other submissions made by both sides in these appeals." CCE Aurangabad vs Shri Samarth Sevabhavi Trust "5. The question between the parties is whether the services would fall within the definition of "Manpower Recruitment or Supply Agency Services". The definition of this term is mentioned in clause (105)(k) r.w. Section 65(68) of the Finance Act, 1994, which read as under :- "(105)(k) "Taxable service" means any service provided or to be provided to any person, by a manpower recruitment or supply agency in relation to the recruitment or supply of manpower, temporarily or otherwise, in any manner" "65(68) "manpower recruitment or supply agency" means any person engaged in providing any service, directly or indirectly, in any manner for recruitment o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ned in these appeals, passed by the learned Member of the Appellate Tribunal calls for no interference. The appeals are hereby dismissed. No costs." Seven Hills Construction vs CST Nagpur "The appellants are in appeal along with a stay application against the impugned order wherein the Service Tax demand of Rs. 1,68,54,852/- has been confirmed against the appellant along with interest and various penalties under the Finance Act, 1994 under the category of Manpower Recruitment or Supply Agency Services. 2. After hearing both sides, we find that the appeal itself can be disposed of at this stage. Therefore, after granting waiver of the requirement of pre-deposit of Service Tax, interest and penalties, we take the appeal itself for disposal. 3. Brief facts of the case are that the appellants are engaged in providing the service of supply of manpower for running and maintenance of crusher plant and loading of crushed stones in various sizes as required by their clients under an agreement of supply of man power as per rate contract. The appellants have executed the work in lump-sum. The department is of the view that the activity undertaken by the appellants are covered under Ma....