TaxTMI 
TaxTMI 
2024 (9) TMI 693
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.... Section 73(1) of the Finance Act, 1994. Interest and penal provisions of the Finance Act, 1994 have also been invoked. The matter got adjudicated by the impugned order-in-original dated 06.07.2016 whereunder all the charges as invoked in the show cause notice have been confirmed against the appellant by Adjudicating Authority. The appellant have approached the Commissioner (Appeals) for relief however, the appellant did not succeed at the appeal level also and vide order dated 06.10.2015 the appeal was dismissed by the Commissioner (Appeals). 2. The appellant are before us against the above mentioned impugned order-in-appeal and has submitted that the appellant has taken contract for assisting various industrial units in maintaining of fire fighting maintenance and detection service including the maintenance and upkeep of fire fighting equipments installed at the various factory premises. The appellant have submitted that payment which is being made to the appellant is on monthly lump-sum basis by individual industrial units. So far as statutory obligations under the law like Provident Fund and ECI etc. with regard to employees deployed by the appellant at various industrial un....
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.... STR 806 (Bom.) 2016 (41) S.T.R. 806 (Bom.). (f) Super Poly Fabriks Limited vs. Commissioner of C. Ex. Punjab (10) S.T.R. N545 (S.C.). (g) Naya Sarai SSS Limited vs. CCE, Ranchi - 2023 (13) CENTAX 292 (Tribunal Cal.). 4. We have also heard Shri AR Kanani, learned Superintendent (AR) who has reiterated the findings as given in the impugned order-in-appeal. 5. We have heard both the sides. It will be relevant to have a glance at various work orders received by the appellant by various manufacturing units. The sample copy of the work order dated 29.12.2005 issued by M/s. Chambal Fertilizers and Chemicals Limited is reproduced below:- A perusal of the above mentioned work order makes it clear that annual contract was for assisting fire fighting and to handle any emergency arising due to fire incidence in the complex of M/s. Chambal Fertilizers and Chemicals Limited and to maintain fire safety equipments in healthy and working condition and for this purpose, the appellant are being paid an amount of Rs. 1,63,000/- per month. In the terms of contract, we find that it is the responsibility that appellant to make statutory monthly payment like PF, ECI etc. for hi....
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....ot for supply of man power but to carry out manufacturing activity of detergent/cake, therefore, in our view it is clear contract of manufacturing of excisable goods. 6. There is no dispute that the appellant after carrying out the manufacturing handed over the excisable goods to M/s. Nirma Ltd who ultimately cleared the said goods on payment of excise duty. It is also observed that the appellant were paid the service charges, as per the quantity of excisable goods i.e. detergent/cake manufactured by the appellant and the consideration is not with reference to the number of man power/man hour deputed for the manufacturing of excisable goods. This also shows that there is no contract between the appellant and M/s. Nirma Ltd for supply of man power. The activity carried out by the appellant is at the most considered as "production or processing of goods on behalf of the client" which is covered under the service head of "Business Auxiliary Service". If this be so, then the service is exempted under Notification No. 8/2005-ST. Since, the demand was raised under wrong head i.e. Man Power Recruitment and Supply Agency Service, for this reason also the demand is not sustainable.....
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.... the same time considered to be a service and subjected to service tax. This principle does not need much discussion and is also recognized under Section 65(19) of Finance Act, 1994 levying service tax on processing of goods not amounting to manufacture. Process amounting to manufacture is kept specifically out of the scope of the entry. That being the case such an activity cannot be brought under service tax levy under "Business Support Service" because the underlying principle will apply to this entry also. The specific exclusion is not seen under 64(104c) for the reason that the legislature intended to deal with the issue under Section 65(19). We find that Revenue is also not disputing the position that manufacturing activity cannot be subjected to service tax. Revenues contention is that what JLSL was doing was manufacturing and what appellant (earlier known as PMSL) was doing was support services. 14. So the essential question to be determined is whether the impugned activity can be split into two - one as manufacturing by JLSL and the other as service by appellant (earlier known as PMSL) to JLSL. While considering this issue another issue that arises is whether there....
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....umer; and the word "manufacturer" shall be construed accordingly and shall include not only a person who employs hired labour in the production or manufacture of excisable goods, but also any person who engages in their production or manufacture on his own account; 17. Therefore if either party was to apply for registration as a manufacturer the department would have accepted the application. Excise registration is only to the effect that one of the parties undertakes to discharge the excise duty liability on the goods manufactured. This cannot be interpreted to mean that the activity done by the other party is not manufacturing activity. Notification 214/86-C.E. only provides a mechanism by which the duty liability is fixed on the person supplying raw material and enables the clearance of the goods from the factory of actual manufacture subject to undertaking for payment of duty by the other party or its further use in the manufacture of excisable goods. In a situation where the other party (JLSL in this case) was willing to pay excise duty at the time of clearance of the goods from the factory of manufacture there was no need to adopt the procedure laid down in ....
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....ervice tax and hence the demand fails. This demand fails on account of time-bar also because we are of the view that all relevant facts have been disclosed to the department in time. So this part of the appeal is allowed. 21. For the period 1-10-2009 to 14-11-2010 the appeal is dismissed as withdrawn." Shiv Narayan Bansal-2013 (31) STR 747 (Tri.-Del.) "3. Heard both sides and perused the records. We have gone through the finding of adjudicating authority and also the observations of the authorities at page 63 of the appeal folder, wherein the authorities had noted that :- "In the instant case all the three persons mentioned in last para of the above letter are not covered under the above referred service as they did the job work themselves. The service receiver has not paid amount individual person who have performed the job work. Moreover, labour employed for the job work remained under the control of job worker and not in the control of the service receiver. Thus, party's contention appears to be correct." 4. On totality of the construction of the agreement at page 48 of the appeal folder without being read in piece-meal does not throw light to....
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.... Qtn. Ref : MOM DATED OCT 13, 2005 BRN No 17750 Indentor : 58 Fire Fighting & Safet Contractor : Amd. Dt. Indent Ref : 12296 EA No : 15070021 Amd. No. To INDUSTRIAL FIRE & SAFETY SERVICES FF/14 MARUTHY COMPLEX, NEW CHHANI ROAD,NIZAMPURA, BARODA - 390002 Tele : 0265-2761278, 27C Fax : 0265-2776208 1. Please indicate the above Work Order contract No. on all invoices, delivery challans and correspondence. 2. Mail all documents to the Dy. General Manager - Materials, Chambal Fertilisers and Chemical Ltd., Gadepan-325208, Kota. 3. Please see reverse for general terms and conditions governing this Contract. 4. Please return the duplicate copy duly accepted. Please arrange to carry out the following job as per Job Description, Scope of Work, terms and conditions of this contract. Subject :- ANNUAL CONTRACT FOR ASSISTANCE IN FIRE FIGHTING SERVICES AT GADEPAN SITE D >SL. Job Description Job Code Unit Quantity Unit Rate Amount(Rs) FIRE FIGHTING & SAFETY JOBS" Assistance in Fire Fighting Services - to handle any emergency arising in our Plants i.e. Ammonia, Urea, Bagging, Offsite &Utilities and other associated areas and township in Gadepan comple....
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....wer shall be provided one set of Uniform immediately and second set after three months. In addition, Boiler suit (one no.), Shoes (one pair). Socks (two pairs), Belt (one no.), & Woollen jersey (one no.) per year shall be provided. In case of Page 1 of 5 Contractor's copy /Contractor's Acceptance copy / Indentor / Finance / Purchase / Master Copy/ P & A/Stores/Buyer Laogie Document 2 Chambal Fertilisers and Chemicals Ltd. WORK ORDER C 90 o. Office GADEPAN 325208 I KOTA(RAJASTHAN) le 07485-274121(7 lines) X: 07485-274129/274130 Mail Mille / www.cfel.co.in Order No. : GFCL/PURV/ JKG/95332 Date : 29/12/2005 Enq.No. 1 OFCL/PUR/JKG/12906 Qin. Ret I MOM DATED OCT 13, 2005 BRN No 17750 Indentor 158 Fire Fighting & Bafet Contractor : Amd. DE Indent Ref : 12200 15070021 EA No Amd. No. ECO NO. 1405033151 Collectrate:Jaipur DiviKola Range:Rural 1 TIN No. 08222951511 (Under RBT & OST Act) : 12200 15070021 EA No requirement of any other equipment for discharging of for shall provide the same. However, Gumboot & Raincoat as and when required shall be provided by CFCL free of cost 4. He will also look after the day to day functioning of the Mea....
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....nt and minimum 8 years experience In large industrial establishment. b) Fire Supervisor - Minimum sub-officers course from NESC, Nagpur or equivalent and minimum 2 years experience in large industrial establishment. c) Sr. Fire Engine Driver cum Operator - Minimum five years experience in a regular fire service as driver cum operator similar to CFCL F&S setup in addition to the qualifications of fire engine driver cum operator d) Fire Engine Driver cum Operator .- Possessing heavy vehicle driving license and minimum five years driving experience in rural & urban areas, knowledge of repairing and maintenance of heavy vehicles is a must OR Possessing heavy vehicle driving license with six month firemen's course from a recognised fire fighting institute and minimum two years driving experience in rural & urban areas, knowledge of repairing and maintenance of heavy vehicles is a must. e) Leading Firemen - Minimum qualification as of Fire operator [Fireman], but experience shall be 5 years instead of 2 years 1) Fire operator [Firemen] - Matriculate with minimum 8 months fireman course from a recognized fire fighting institute or state fire service and 2 years practical ex....
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.... e) The Principal Employer will retain 5% of the invoice value every month and shall release the same on compliance of all statutory cbligations. 1) The Principal Employer will have liberty to en-cash the BG submitted towards security amount to discharge any legal obligation otherwise cast on the Contractor under any Labour Law. The security will remain with the Principal Employer upto three months after termination / completion of contract. No Interest is payable on such security deposit. g) Vendor shall furnish proof of submission for Provident Fund of previous month with every invoice. The contractor shall provide the clearance certificate along with proof of payment of all dues within two months of person leaving the job. However in case of final bill same shall be submitted along-with final bill & No dues certificate to enable release of payment. INDEMNIFICATION / PERFORMANCE GUARANTEE: a) Contractor shall deposit an amount of Rs. 10,000/- towards satisfactory performance of the contract. The above amount shall be interest free deposit and shall be refunded after satisfactory completion of contract. The amount shall be forfeited if the job is not carried out to the....
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....discharge your obligations and you will be fully responsible to CFCL-Gadepan for the job assigned. c) For proper co-ordination and close follow-up, you will depute one of your senior representatives, who will visit once every fortnight compulsorily at our site, for proper supervision and control and administration of contract. d) Contractor shall station additional manpower if required for short notice replacement to cover leave / shortfall and meet contingencies, without any cost to CFCL. e) The job shall be carried out by you to the entire satisfaction of the Company on your absolute responsibility and cost ;- / f) You will closely liaise with our Manager - F & S for effective services and your personnel will assist the management in any emergent/unforeseen situation like Fire, Natural calamities etc. g) Contractor shall ensure that no post is unmanned due to absence of manpower and any overtime payment for doing so shall be bome by contractor. h) You shall indemnify and legally protect owner and/or its employees from all claims, demands, causes or action or suits arising out of services/works provided by you under this work order. j) You will be entirely res....
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....l protective equipments as listed in work permit CFCL reserves the right to cancel the Gate passes/refuse entry to the worker involved. g) A penalty as below shall also be deducted from Contractor's bills for these violations as observed by CFCL Job In-charge/Safety In-charge: (1) Rs 500/- for 1st observed violation (il) Rs. 800/- for 2nd observed violation (iii) Rs. 1,200/- for 3rd observed violation. Iv) For violation beyond three Page 4 of 5 Contractor's copy /Contractor's Acceptance copy / Indentor / Finance / Purchase / Master Copy/ P & A/Stores/Buyer Logie. Document 5 Chambal Fertilisers and Chemicals Ltd. WORK ORDER C 93 /gd. Office : O.GADEPAN-325208 ISTT KOTA(RAJASTHAN) ele :07455-274121(7 lines) AX : 07455-274129/274130 Mail : Website : www.cfcl.co.in Order No. : CFCL/PUR/ JKG/95332 Date : 29/12/2005 Enq.No. : CFCL/PUR/JKG/12296 Qtn. Ref : MOM DATED OCT 13, 2005 BRN No 17750 Indentor Indent Ref : 58 Fire Fighting & Safet Contractor : : 12296 15070021 EA No : Amd. Dt. Amd. No. ECC NO.1405033151 Collectrate:Jaipur Div:Kota.Range:Rural-1 TIN No. 08222951511 (Under RST & CST Act) instance, the contract shall be cancelled and job e....