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Shri H.R. Patel vs C.C.E., Raipur

Customs Excise and Service Tax Appellate Tribunal21 September 2015

Ratio decidendi

The rule this decision rests on

Where the consideration received is for fabrication work carried out by the assessee's own employees, and no consideration is received for workmen deputed or supplied to the recipient, the activity does not fall within the taxable category of Manpower Recruitment or Supply Agency service, and the service tax demand founded on that category cannot be sustained.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL,West Block No.2, R.K.Puram, New DelhiCOURT-IDate of hearing/decision: 21.09.2015Service Tax Appeal No.60137 of 2013 withStay Application No.60996 of 2013

Arising out of the order-in-appeal No.23, 24, 25, 26, 27, 28 & 29 (ST)/RPR-II/2013 dated 22.07.2013 passed by the Commissioner of Central Excise (Appeals) , Raipur.

For approval and signature:

Honble Mr. Justice G. Raghuram, President

Honble Mr. R.K.Singh, Technical Member

1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 26 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 26 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether their Lordships wish to see the fair copy of the Order?

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

Shri H.R. Patel .. Appellant

Vs.

C.C.E., Raipur .. Respondent

Appearance:

Present Shri Manish Saharan, Advocate for the appellants

Present Mrs. Suchitra Sharma, A.R. for the respondent

Coram: Honble Mr. Justice G.Raghuram, President

Honble Mr. R.K. Singh, Technical Member

Final Order No. 52926/2015

Per Justice G. Raghuram:

The appeal is preferred against the order dated 22.7.2013 passed by the ld. Commissioner (Appeals), Raipur confirming service tax demand of Rs.3,46,947/- apart from interest and penalty as assed by the primary adjudication authority, vide the impugned order dated 28.3.2013. The appellant received consideration from M/s Simplex Engineering & Foundry Works, Bhilai on piece rate basis for providing certain fabrication work by deputing workers to the factory. Proceedings were initiated and levy confirmed for having provided Manpower Recruitment or Supply Agency services.

2. On the basis of the material available on record the appellant did not receive any consideration in terms of workmen deputed/supplied to M/s Simplex Engineering & Foundry Works but had received consideration for items fabricated by its employees. In an identical fact situation, by the Final Order No.54661  54665/2014 dated 27.11.2014 in M/s A.K. Nadi & Co. and others vs. C.C.E., Raipur, the Tribunal allowed the appeals preferred against levy of tax and declared that in view of the earlier decisions in Divya Enterprises vs. C.C.E., Mangalore  2010 (1) STR 370, CESTAT; Ritesh Enterprises v. C.C.E., Bangalore  2010 (18) STR 17 (Tri-Bang.) and S.S. Associates v. C.C.E., Bangalore  2010 (19) STR 438 (Tri-Bang.), the activity in issue does not fall within the ambit of the Manpower Recruitment or Supply Agency service.

3. In the light of the law declared, the impugned order is unsustainable and is set aside. The appeal is allowed. No costs.

(Justice G. Raghuram)

President

(R.K. Singh)

Technical Member

1

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