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MANISH ENTERPRISES Vs CCE-TIOL
2016TIOL119CESTATMUM IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH, MUMBAI COURT NO.II APPEAL NO. ST/206/12MUM Arising out of OrderinAppeal No. PI/RKS/04/2012/1441 dtd. 10/1/2012 passed by the Commissioner (Appeals), Central Excise, Pune I Date of Hearing : 30.10.2015 Date of Decision : 30.10.2015 M/s MANISH ENTERPRISES Vs COMMISSIONER OF CENTRAL EXCISE, PUNE I Appellant Rep by: Ms Padmavati Patil, Adv Respondent Rep by: Shri S L Karoliya, Asstt. Commissioner (A.R.) CORAM: P S Pruthi, Member (T) Ramesh Nair, Member (J) ST – Manpower Recruitment & Supply Agency Appellant has deputed manpower to carry out job work on behalf of their client i.e. conversion of Aluminum Ingots to Aluminum Castings Charges for the job work are based on the quantum of production and not against supply of manpower, therefore, activity remains as production on behalf of the client in the factory of the client Though the appellant was deputing manpower but services which were carried out is job work in the client's factory and since the said activity amounts to manufacture it does not fall under category of Manpower Recruitment Services – further, since activity of the appellant amounted to manufacture of goods it is not covered under Business Auxiliary Services, as Manufacturing activity stands excluded in the definition to BAS – furthermore, if it is considered as taxable activity, the same is exempted under Notification No. 8/2005ST dated 1/3/2005 ratio of the judgment in Hemant V. Deshmukh [2014TIOL1052 CESTATMUM] is squarely applicable to the facts of the present case – order set aside and appeal allowed with consequential relief, if any: CESTAT [para 6] Appeal allowed Case law cited Hemant V. Deshmukh vs. Commissioner of C.Ex , Goa 2014TIOL1052CESTAT MUM… para 3, 6…followed ORDER NO: A/3724/15/STB Per: Ramesh Nair This appeal is directed against OrderinAppeal No. PI/RKS/04/2012/1441 dtd. 10/1/2012 passed by the Commissioner (Appeals), Central Excise, PuneI, wherein the Ld. Commissioner (Appeals) upheld the OrderinOriginal No. PI/ADC/STC/10/2011 dated 29/9/2011 and rejected the appeal of appellant. 2. The facts of the present case is that the appellant is providing the job work by converting Aluminum Ingots to Aluminum casting which amounts to manufacture. The Revenue contended http://www.taxindiaonline.com/RC2/printCase.php?QoPmnXyZ=MTEwMTE5
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MANISH ENTERPRISES Vs CCE-TIOL
that appellant providing labour and which falls under ‘Manpower Recruitment Agency Services', accordingly they are liable to pay Service Tax for the period 200708 and 200809. The Adjudicating Authority has confirmed the demand and imposed penalty. Aggrieved by the said Adjudication order appellant filed appeal before the Commissioner (Appeals) who upheld the OrderinOriginal by passing the impugned order therefore appellant is before us. 3. Ms. Padmavati Patil, ld. Counsel for the appellant submits that they deputed the manpower to carry out the job work on the basis of quantum of production on the material supplied by their client. The payment for the labourers is not made towards salary/wages on the basis of number of labourers, payment is made on the basis of quantum of production carried out by the job worker, therefore they are not providing man power. They are only carrying out job work for their client. The activity is amount to manufacture which is excluded from the provisions of Service tax under the head of ‘Business Auxiliary Services' on behalf of the client. She also submits that in any case the job work on the material supplied by the client is exempted service by virtue Notification No. 8/2005ST dated 1/3/2005. In support of her submission, she placed reliance on the judgments in case of Hemant V. Deshmukh vs. Commissioner of C.Ex, Goa (2014(35) STR 602 (Tri. Mumbai)] = 2014TIOL1052CESTATMUM. 4. On the other hand, Shri S.l. Karoliya, Ld. Asstt. Commissioner (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. 5. We have carefully considered submissions made by both sides. 6. The undisputed fact in this case is that appellant has carried out job work on behalf of their client i.e. conversion of Aluminum Ingots to Aluminum Castings. The charges for the job work are based on the quantum of production and not against supply of manpower. Therefore activity remains as production on behalf of the client in the factory of the client. In this fact though the appellant was deputing the manpower but services which carried out were job work in the client's factory, the said activity amounts to manufacture, hence, does not fall under category of Manpower Recruitment Services. Since activity of the appellant amounting to manufacture of the goods, even it is not covered under Business Auxiliary Services, as Manufacturing activity stands excluded in the definition to Business Auxiliary Services. We also agree with the ld. Counsel that if it is considered as taxable activity, the same is exempted under Notification No. 8/2005ST dated 1/3/2005. On going through judgment cited by the Ld. Counsel, we find that the ratio of the judgment squarely applicable to the facts of the present case. In view of the above discussions, we set aside the impugned order and allow the appeal of the appellant with consequential relief, if any, in accordance with law. (Dictated in court) (DISCLAIMER: Though all efforts have been made to reproduce the order correctly but the access and circulation is subject to the condition that Taxindiaonline are not responsible/liable for any loss or damage caused to anyone due to any mistake/error/omissions.)
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