TaxTMI 
TaxTMI 
2024 (11) TMI 1562
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....ties of printing and cutting which completes the manufacture activity of the appellant. The activities performed by the job workers were utilized in day to day manufacturing activities, in the premises of the appellant itself. The raw materials as well as the machinery support, to perform such activities, are provided by the appellant to the job workers. During the relevant period from April-2012 to March-2016, the appellant entered into agreement/contract with the said job workers on annual basis. The raw material provided by the appellant is further processed by the job workers and the finished goods directly handed over to the respective departmental head who recorded/entered the same in the system. The various agreements entered into by the appellant for the said job work activities provided that the essence of the agreement was fulfillment of pasting, striping, sorting, packing and similar needs of the appellants. The employees of the job work providers were to function entirely under the control of such contractors (providers) or under the supervision of such supervisors appointed by the job workers. For the provision of these activities the job workers issued invoice to the ....
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....une-1 2016 (10) TMI 1234- CESTAT MUMBAI * Suresh Contracts v. CCE & ST, Salem 2023 (5) TMI 393 * Abbas Mussa Proprietor Vs. CCE & ST- Rajkot 2023 (8) TMI 249 2.1 He further submits that the entire manpower deputed for the job work for the present appellant have been working under the control of contractor and not under the control of appellant, this further shows that the appellant have not been supplied the manpower whereas the contractor have under taken only job work as assigned to them. 3. Shri Rajesh K Agarwal, Ld. Superintendent (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order. 4. We have carefully considered the submission made by both the sides and perused the records. We find that the demand was raised under the category of 'manpower supply service' on reverse charge basis on the appellant. Firstly, to fasten the service tax liability on the appellant, it is necessary to ascertain the nature of service for which the most important document can be relied upon is the contract between the appellant and the service provider, one of such agreement is scanned below:- From the above contract, it is absolutely clea....
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....ing the service where as 75% of the Service Tax was payable by the person receiving the service. We find that issue is no longer res integra as this Tribunal in a case of M/s. Dayanand Mishra Vs. Commissioner of Central Excise and Service Tax, Rajkot in Final Order No. 10766/2024 dated 05.04.2024 has already decided matter the relevant extract of same is reproduced here below:- "3 The learned advocate appearing for the appellant submitted that the appellant is engaged in providing service of production/ processing of goods for M/s. Senor Metals Pvt. Limited wherein the service recipient was providing semi-finished materials to the appellant and the appellant was undertaking various manufacturing process such as drawing, straightening, cutting etc. to manufacture brass extruded rods/ tubes/ wires etc. The learned advocate submitted that appellant had agreed and entered into an agreement with M/s. Senor Metals Pvt. Limited in 2004 and as per the agreement, the service recipient has paid the consideration to the appellant for the work performed by the employees of the appellant based on quantum of work performed. It has further been stressed that the appellant has ra....
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....act at a per Kg/ MT rate fixed for the work. We find that the matter under consideration is no more res-integra as it has already been decided by this Tribunal in the case of Abbas Mussa Proprietor vs. CCE & ST, Rajkot - 2023 (8) TMI 249 CESTAT AHMEDABAD. The relevant extract of the above order is reproduced herein below:- "4.4 In the similar case of Sureel Enterprises Pvt. Limited (Supra) the Tribunal has passed the following order: 5. We find that very identical issue in the appellant's own case for the previous period i.e. June 2005 to June 2010 was considered by this Tribunal in Service Tax Appeal Nos. 2327 of 2011, 768 of 2011 and 10391 of 2013.In these appeals this Tribunal has passed a Final Order No. A / 11947 - 11949/2019 dated 18.10.2019 whereby it was held that the appellant's activities amount to manufacture and does not amount to service of Manpower Recruitment Agency Service. Accordingly, the appeals were allowed. This Tribunal following various judgment namely, Ramesh C. Patel 2012 (25) STR 471 (Tri. Amd.), Jubilant Industries Limited 2013 (31) STR 181 (Tri. Del.) and Shiv Narayan Bansal 2013 (31) STR 747 held that contract between the appel....
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.... activities. The present appellant was assigned job work related to manufacturing on the basis of charges which is per piece basis and the item being manufactured by the appellant. As per terms and conditions of the agreement, the service recipient will provide all the facilities such as machines, tools, place etc. The appellant has only to undertake work done their skilled, semi- skilled, non-skilled workers as per drawing by appointing workers/contractor. It is also one of the conditions that the appellant is under obligation to pay minimum wages to its workers even though there is no work. However, whenever there is work, the charges will be paid by the service recipient to the appellant as per the rates decided i.e. per piece basis. 5. As regards the responsibility and control, it is the appellant who has to bear all the responsibility of appointed workers according to the labour laws. With the aforesaid terms and conditions, it is clear that the appellant is carrying out the job work relating to manufacturing as per agreement entered with the facilities 1084/2015- DB provided by the service recipient and the charges is also per piece basis. The entire control of worke....
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....ed is of contract manufacturing hence demand under manpower supply cannot be made. Concluding and operating portion of the order is reproduced below: From the above judgments the issue in hand is settled that when the contract between the service provider and service recipient is admittedly of contract manufacturing in such case demand under man power supply cannot be made. The appellant have vehemently argued on Revenue neutral situation on the ground that if at all the appellant is liable to pay service tax the same is available as Cenvat credit to the service recipient i.e. M / s Nirma Ltd. In this regard, he also submitted the details of payment of excise duty of M / s Nirma Ltd from PLA/cash. This prima facie show that it is a case of Revenue neutral and by not paying the service tax by the appellant the Government Exchequer is not at any loss, however, since, we have already decided the issue on merit, we are not giving our concluding opinion on Revenue Neutral position. The issue of jurisdiction raised by the appellant is also kept open. As per our above discussion the impugned order is not sustainable. Hence, the same is set aside. The appeals are allowed ....
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....nder 'Manpower Recruitment or Supply Agency Services'. To understand the fact in the present case it is necessary to ascertain the payment terms, for which a sample copy of the invoice raised by the appellant to the service recipient is scanned below: 4.2 From the above invoice it can be seen that the job under taken by the appellant is sorting, shifting and cleaning of container's materials and the charges for the same was claimed 1 rupee per kg basis. This clearly shows that the service recipient is not concern about the number of manpower deputed for the job, whereas the service recipient has assigned the job to the appellant only in respect of sorting, shifting and cleaning of container's materials. The control of the manpower in this fact is obviously with the appellant and not with the service recipient. 4.3 In this fact it is clear that the appellant have not provided the services of 'Manpower Supply or Recruitment Agency Services', this fact of the case is not under dispute as on this basis only the Adjudicating Authority has dropped the proceeding initiated in the show cause notice. This issue has come up time and again before this Tribunal. This Tribunal....
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....tc. - Rs. 03.00 per mt. Service charges - Rs. 03.50 per mt. Side godowns : Unloading and stacking wagon cargo - Rs. 12.75 per mt. Destacking and loading - Rs. 10.00 per mt. Restandardization 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 Bales - 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 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 offici....
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....es 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 1the 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 Co-operative 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 Co-operative Society Ltd., which is annexed at Page Nos. 170 & 171 of the appeal memoranda and noted that the in....
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....agencies for temporary supply of manpower which is engaged for a specified period or for completion of particular projects or tasks In the case of supply of manpower individuals are contractually employed by the man-power 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 Whether service tax is liable on such service under manpower recruitment or supply agency's services 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 manpower, it can be ....
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.... appellant have vehemently argued on Revenue neutral situation on the ground that if at all the appellant is liable to pay service tax the same is available as cenvat credit to the service recipient i.e. M/s. Nirma Ltd. In this regard, he also submitted the details of payment of excise duty of M/s. Nirma Ltd from PLA/cash. This prima facie show that it is a case of Revenue neutral and by not paying the service tax by the appellant the Government Exchequer is not at any loss, however, since, we have already decided the issue on merit, we are not giving our concluding opinion on Revenue Neutral position. The issue of jurisdiction raised by the appellant is also kept open. As per our above discussion the impugned order is not sustainable. Hence, the same is set aside. The appeals are allowed with consequential relief, if any, in accordance with law. 6. In view of above decision of the Tribunal in the appellant's own case on the same issue, the issue in the present case is no longer res integra. The only difference in the present case and the case decided supra is the difference of period. However, there is no change in the facts and the law point, therefore, the ....
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....Supply Agency Service. The judgment relied upon by the appellant are directly on the issue. In the case of Sureel Enterprise Pvt. Limited vs. CCE & ST., Ahmedabad 2019 (10) TMI 1245-CESTAT Ahmedabad wherein the similar facts are prevailing inasmuch as the service provider provided the" 4.6 In view of the above decisions on the identical issue in hand and our observation made herein above, we are of the clear view that the appellant have not provided the 'Manpower Recruitment or Supply Agency Services'. Therefore, the demand made under the said category is not sustainable. 5. Accordingly, we set aside the impugned order, uphold the Order-in-Original and allow the appeal filed by the appellant." * In an identical case of Sureel Enterprises Pvt. Ltd reported 2019 (10) TMI 1245 this Tribunal has passed the following order:- 5onwrds "5. We have carefully considered the submissions made by both the sides and perused the records. We find that the appellant entered into agreement dated 20.11.1999 with M/s Nirma Ltd, Bhavnagar, according to which the appellant was supposed to manufacture of detergent on job work basis. however, subsequently, they made ano....
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....t or supply agency. First of all, it should be provided by a manpower recruitment or supply agency and secondly it should be in relation to manpower supply or recruitment. In this case, whether it is in the agreement entered into between the two parties or in the activity undertaken by the appellant which is contract manufacturing, looked into, it is seen that nowhere the question of supply of manpower or recruitment arises. In fact the agreement is totally silent as regards the manpower. It does not have any provision relating to the number of men or labour to be used or the manner in which they have to be used or the quantum of payment to be made to them etc. The department has totally failed to show in which manner the service provided by the appellant can be categorized under manpower recruitment or supply. In the Order- in-Original, the adjudicating authority proceeded on the ground that there was no challenge to the liability of tax at all since the appellant had deposited the amount during investigation. Commissioner (Appeals) in her order simply stated that she agreed with the view of the adjudicating authority and went on to say that appellants had wilfully suppressed the ....
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.... JLSL was supplying all the raw materials required for manufacturing final products. JLSL was also supervising the manufacturing process and was taking steps to ensure the quality of the products. All activities like handling the raw materials, its accounting and processing was done by appellant (earlier known as PMSL). This means that both the parties were involved in the manufacturing activity. It is also to be noted that such manufacturing arrangements are very common in the country. In such situation legal provisions exist in Central Excise laws for considering either of the two parties as manufacturer. In most cases the persons doing the job-work claims to be the manufacturer and pays excise duty as applicable in his hands. There are situations where the person supplying raw materials undertakes to pay excise duty and for that reason excise duty is not charged in the hands of the person doing the manufacturing activity. Notification 214/86-C.E. is applicable in such cases. 16. Section 2(f) of Central Excise Act defines manufacture and manufacturer as under : "manufacture" includes any process, - (i) incidental or ancillary to the completion of a manu....
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....nfrastructure and doing activities of raw material handling, accounting etc. are to be considered as activities distinct from manufacturing activity. All the activities done by the appellants have to be seen together and when it is so seen it is clear that they were doing manufacturing activity. For reasons already explained, the fact that PLSL was paying excise duty does not lead to a legal position that the appellant (earlier known as PMSL) was not doing manufacturing activity. The fact that appellant (earlier known as PMSL) was charging two components towards job-charges separated as fixed cost and variable cost cannot alter this situation so long as goods were manufactured. In a situation where goods were not manufactured but charges were collected under the fixed component it could have been considered as a service. While working out cost of any manufactured product costing is done by splitting cost elements into fixed cost and variable cost and that cannot change the nature of the activity. What could have changed the nature of the activity is a situation where no manufacturing activity took place and still the appellant collected their charges. 19. We also do not fi....
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....t, we do not propose to keep the appeal pending. We hold that the appellant had not provided service of manpower but had acted as job worker in absence of finding that no manufacture activity was carried out. 6. Appeals are thus allowed. Consequently, both stay applications and appeals get disposed of in the above manner." 7. From the above judgments the issue in hand is settled that when the contract between the service provider and service recipient is admittedly of contract manufacturing in such case demand under man power supply cannot be made. The appellant have vehemently argued on Revenue neutral situation on the ground that if at all the appellant is liable to pay service tax the same is available as cenvat credit to the service recipient i.e. M/s. Nirma Ltd. In this regard, he also submitted the details of payment of excise duty of M/s. Nirma Ltd from PLA/cash. This prima facie show that it is a case of Revenue neutral and by not paying the service tax by the appellant the Government Exchequer is not at any loss, however, since, we have already decided the issue on merit, we are not giving our concluding opinion on Revenue Neutral position. The issue of j....
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....nd & supply from the mother organization. The second party is engaged in the business of providing stripping, Sorting, Packing for various purposes. The second party has available with it stripping, Sorting, Packing for the purpose required by the first party and is keen to provide its personnel to meet the requirement of the first party. On the basis of the assurances given by the party of the second part the parties have put their seal to the terms & conditions mutually agreed & referred as under :- 109 01. This agreement shall be deemed to have come into effect from 1st April, 2015 and shall remain in force till 31st March, 2016. Thereafter, the agreement may be renewed for further period of one year on mutually agreed terms & conditions. The agreement shall be terminable by either party by a 30 days notice in writing, delivered at the office of the other party. 02. The second party shall provide stripping, Sorting, Packing according to the needs of the first party. The first party or its authorized representative shall intimate it's requirements to the second party at least one day in advance. The second party shall try to meet this requirement within 24 hours of....
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....e second party, its employees and / or its supervisors fail to complete the tasks assigned to them within the time stipulated for the same the second party shall be liable to pay liquidated damages to the first party at a scale to be stipulated separately by the first party. 8. The second party shall obtain a license from the concerned Government Authorities for doing the business of supplying the contract labour under the Contract Labour (Regulation & Abolition) Act, 1970. 9. The second party and / or his employees shall have no right of occupation or lien whatsoever upon the premises where the said employees are stationed. The second party shall ensure that it and its employees will leave the premises that have been made available them under this agreement immediately upon being asked to do so by the first party or its authorized representatives. 10. Neither the second party nor any of his employees shall be entitled to claim they are employees of the first party. The second party and his employees shall not be entitled to any of the benefits, which the employees of the first party are entitled to. Nor shall be employees of the second party be subject to the rules, contr....
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....CCORD-S3 ALLOPURINOL 100MG- 700324 220000 20 ,400 July-13 EXPERT FOLD 10003677-0002-000 ZICRON 28 TABS 40MG BRISTOL (SDNTN4) 511000 8,176 July-13 EXPERT FOLD 10003798-0008-000 |ACCORD-S19 LOSARTAN 100MG -700705 115700 .6 1,851 July-13 EXPERT FOLD 10003991-0000-000 |PEARS SOAP 3 X 75G EXP : NPBSVCAS 30700 45 1,382 July-13 EXPERT FOLD 10004188-0002-000 T-17 TORLOS H 50 + 12,5 MG +- 8039891 110000 16 1,760 July-13 EXPERT FOLD 10004424-0000-000 |PEARS SOAP 12 X 75G EXP : NPBSVCAS1 9900 45 446 July-13 EXPERT FOLD 10004923-0006-000 T-31 EPEZ 5MG - 8037997 8000 16 1,088 July-13 EXPERT FOLD 10005585-0006-000 I-S46 METOCLOPRAMID ACCORD 10MG - 608605 90300 16 1,445 July-13 EXPERT FOLD 10006748-0002-000 IT-59 TORLOS 100 MG - 8033967 4000 .6 64 July-13 EXPERT FOLD 10007251-0000-000 BRISTOL AMLODIPINE 5MG 28 TABS CAM001 605300 20 .2,106 July-13 EXPERT FOLD 10007390-0004-000 GK ACTIV+ REFILL 45ML WINDOW-GUWAHATI V2 1969000 45 88,605 July-13 EXPERT FOLD 10007459-0020-000 I-S82 FINASTERIDE ZENTIVA 5MG - 634546 27000 432 July-13 EXPERT FOLD 110007459-0025-000 -582 FINASTERIDE ARROW SMG - 627967 R 15700 16 251 July-13 EXPERT FOLD 10007486-0007-000 I-S84 AFT M....