H.T. Shinde vs Commissioner Of Central Excise

IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI

COURT No. I

Appeal No. ST/54/12

(Arising out of Order-in-Appeal No. PIII/RS/342/2011 dated 30/1/2011 passed by Commissioner of Central Excise, Pune)

For approval and signature:

Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical)

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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?

H.T. Shinde Appellant Vs.

Commissioner of Central Excise Pune III Respondent

Appearance:

Shri U.L. Madane, Consultant for appellant Shri S.L. Kanojia, Asst. Commr (AR) for respondent

CORAM:

Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical)

Date of Hearing: 30.09.2015 Date of Decision: 30.09.2015

ORDER NO

Per: M.V. Ravindran

This appeal is directed against order Order-in-Appeal No. PIII/RS/342/2011 dated 30/1/2011.

2. Heard both sides and perused the records.

3. The appellant herein is a Hamali contractor and is engaged in undertaking hamali work at sugar warehouse for the sugar factory. Revenue authorities were of the view that the amount received by the appellant during the period 2007  08 to 2009  10 for such services is liable to be taxed under Manpower Recruitment and Supply Agency Services. Both the lower authorities have held against the appellant on the ground that the agreement with the sugar factory indicates the exact number of workers/labourers to be employed and the muster all should be shown to the management of the sugar factory while it is a case of the appellant that the contract entered with the management of sugar factory is a lumsum contract. We perused the contract which is annexed to the appeal memoranda. It is seen from the said contract that the consideration which has to be paid to the appellant is based upon the quantum of work completed and does not indicate any supply of labourers to the sugar factory. The contract also talks about stitching of sugar bags after transferring the sugar from torn bags of sugar. We also considered the Ledger account maintained and produced by the appellant. We find that the sips are shown as an amount received towards the lump sum value of the work completed. In our considered view the activity undertaken by the appellant will not fall under the category of manpower recruitment or supply agency. Our this view is fortified by the judgement of the Tribunal in the case of Satara Sahakari Shetu Audyogik OOs Todani Vahtook Society - 2014 (36) STR 123. We reproduce the ratio of which is in paragraph number 5.5 and 6.

5.5?In respect of the appeals filed by the Revenue, the lower appellate authority, after examining the contracts entered into by the respondents, came to the conclusion that the activity undertaken did not amount to supply of manpower but came under the category of business auxiliary service. The ld. lower appellate authority noted that this Tribunal in the case of Ritesh Enterprises v. Commissioner (supra), in the context of contracts of execution of work for loading, unloading, bag stacking and destacking held as under :-

9.?On a careful consideration of the above reproduced facts from the entire case papers, we find that the contract which has been given to the appellants is for the execution of the work of loading, unloading, bagging, stacking, destacking, etc. In the entire records, we find that there is no whisper of supply of manpower to the said M/s. Aspin Wall & Co. or to the CWC or any other recipient of the services in both these appeals. As can be seen from 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 appellants and the recipient of the services. Thus the reasoning adopted by the ld. Commissioner (Appeals) is unassailable and we do not find any infirmity in the said orders. Therefore, Revenues appeals against the decision of the lower appellate authority is devoid of merits.

6.?In view of the above and also following the decisions of this Tribunal in the cases of Amrit Sanjivni Sugarcane Transport Co. Pvt. Ltd., Samarth Sevabhavi Trust and Bhogavati Janseva Trust & Others (supra), we hold that the services rendered by the appellant-assessees do not come under the purview of manpower recruitment or supply service and hence the impugned service tax demands are not sustainable in law. Similarly in the case of other jobs undertaken such as handling of sugarcane or sugar or cleaning or removal of boiler ash, stitching of sugar bags, etc., undertaken by the appellants, these activities also do not come within the purview of Manpower Recruitment or Supply Agency service as held by this Tribunal in the cases of Ritesh Enterprises, Divya Enterprises, S.S. Associates and K. Damodarareddy (cited supra). Since the appeals are allowed on merits, we are not going into the time bar or other issues raised by the appellants.

4. In view of the foregoing, in the facts and circumstances of this case we hold that the impugned order is unsustainable and liable to be set aside and we do so. The impugned order is set aside and the appeal is allowed with consequential relief.

5. The appeal is allowed.

(Dictated in Court)

(C.J. Mathew) Member (Technical) (M.V. Ravindran) Member (Judicial)

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