Commissioner Of Central Excise, Nagpur vs Shri G.M. Mate

(Arising out Order-in-Appeal No. SR/306/NGP/2010 dated 23.09.2010 passed by the Commissioner of Central Excise (Appeals), Nagpur)

Appeal No. ST/738/10 - Mum

(Arising out Order-in-Appeal No. SR/299/NGP/2010 dated 21.09.2010 passed by the Commissioner of Central Excise (Appeals), Nagpur)

For approval and signature: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. P.S. Pruthi, Member (Technical)

1. Whether Press Reporters may be allowed to see No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy Seen of the Order?

4. Whether Order is to be circulated to the Departmental Yes authorities?

Commissioner of Central Excise, Nagpur Appellant

Vs.

1. Shri G.M. Mate 2. Shri Babulal Ladse Respondent

Appearance:

Shri R.K. Das, Comm (AR) for the appellants Shri P.V. Sadavarte, Advocate for the respondent

CORAM:

Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. P.S. Pruthi, Member (Technical)

Date of hearing : 13/05/2015 Date of decision : 13/05/2015

O R D E R No:..

Per: M.V. Ravindran:

These two appeals are directed against Order-in-Appeals SR/306/NGP/2010 dated 23.09.2010 & SR/299/NGP/2010 dated 21.09.2010

2. Both the appeals are disposed of by a common order as the dispute is the same.

3. Both the respondents herein are charged with non-discharge of service tax liability under the category of Manpower Recruitment or Supply Agency service. The Adjudicating Authority confirmed demands raised along with interest and imposed penalties. The first appellate authority on appeal set aside the said demands relying upon the judgment of the Tribunal in the case of Ritesh Enterprises 2010 (18) STR 17 (Tri-Bang). It is noted from the records that both appellants are rendering service to M/s. Amitasha Enterprises P. Ltd. who issued works orders in favour of the appellants for cutting, drilling punching, bending, notching of materials on job work basis and the bills were raised by the appellants. It was noticed by the first appellate authority that work orders were issued for specific work/job on tonnage basis. Aggrieved by the order of the first appellate authority, revenue is in appeal in both these matters.

4. Ld. Departmental Representative would draw our attention to the case records as also the grounds of appeal. It is the submission that both the respondents were registered with Government of Maharashtra under Rule 18 (1) of Contract Labour (Regulation and Abolition) Act, 1970 or doing specific work of cutting, drilling, punching and notching. This would indicate that they are suppliers of contract labour to M/s. Amitasha Enterprises P. Ltd. He would also submit that the licence granted by the office of the registered officer of Government of Maharashtra specifically records the same. He also brought to our notice that judgment of the Tribunal in the case of Ritesh Enterprises (supra), though based on similar circumstances does not preclude the department in filing the appeal in the present case. In view of the submissions, he would plead that the impugned order be set aside the order of the Adjudicating Authority be restored.

5. The ld. counsel appearing on behalf of the appellant would submit that identical issue in the case of M/s. Yogesh Fabricators vide Order no. A/996-997/15/STB dated 23.04.2015 was decided by this Tribunal in respect of the very same activity undertaken by M/s. Amitasha Enterprises P. Ltd.

6. On perusal of the records and after considering the submissions made by both sides, we hold that the impugned orders passed by the first appellate authority are correct for more than one reason. Firstly the departments case that the respondents were supplying labour seems to be incorrect as the first appellate authority scanned the bill raised by respondents which indicates that the charges which are paid to the respondents are in respect of lump sum job and various activities involved depending upon the quantum of material. It is also seen that the first appellate authority has recorded factual finding that M/s. Amitasha Enterprises P. Ltd. supplies the galvanised material to the respondent and further activity are carried out by the respondent within the factory premises of M/s. Amitasha Enterprises P. Ltd., and it is also undisputed that M/s. Amitasha Enterprises P. Ltd. was discharging the Central Excise duty on such goods.

7. We find that the counsel for the respondent was correct in bringing to our knowledge the judgment of the Tribunal in M/s. Yogesh Fabricator which is squarely covering the issue in their favour.

8. In view of the foregoing, and in the facts and circumstances of the case, we hold that the impugned orders are correct and legal and does not suffer from any infirmity. Impugned orders are upheld and the appeals are rejected.

(Operative part pronounced in Court)

(P.S. Pruthi) (M.V. Ravindran) Member (Technical) Member (Judicial)

//SR

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