Custom, Excise & Service Tax Tribunal
Parwindra Enterprises vs Chandigarh-Ii on 12 February, 2025
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
CHANDIGARH
REGIONAL BENCH - COURT NO. I
Service Tax Appeal No. 51879 of 2014
[Arising out of Order-in-Appeal No. JAL-EXCU-000-APP-261-13-14 dated
23.12.2013 passed by the Commissioner (Appeals), C.E. & S.T. Chandigarh-II]
M/s Parwindra Enterprises ......Appellant
C/o Yash Pal S/o Durga Dass
Vill-Udhanwal, The-Balachaur, S.B.S. Nagar, Punjab
144521
VERSUS
Commissioner of Service Tax, ......Respondent
Chandigarh-II Plot No. 19, Central Revenue Building, Sector 17-C, Chandigarh 160017 APPEARANCE:
Shri Krati Singh, Advocate for the Appellant Shri Raman Mittal, Authorized Representative for the Respondent CORAM: HON'BLE MR. S. S. GARG, MEMBER (JUDICIAL) HON'BLE MR. P. ANJANI KUMAR, MEMBER (TECHNICAL) FINAL ORDER NO. 60138/2025 DATE OF HEARING: 12.02.2025 DATE OF DECISION: 12.02.2025 S.S.GARG:
The present appeal is directed against the impugned order dated 23.12.2013 passed by the Commissioner (Appeals), whereby the Ld. Commissioner (Appeals) has confirmed the demand of service tax of Rs. 81,282/- along with equal penalty under Section 78 of the Finance Act and also fine of Rs. 5000 under Section 77.
2. Briefly the facts of the present case are that the appellant entered into a contract on 31.05.2006 with M/s Markfed Agro 2 ST/51879/2014 Chemicals for supplying labour on daily basis and loading & unloading of Taucks/LCV for the period 01.06.2006 to 31.05.2007. The appellant was issued a show cause notice dated 20.04.2011 for recovery of service tax amounting to Rs. 2,72,932/- by the Deputy Commissioner, Ropar for the period 01.07.2006 to 30.11.2007 for providing Manpower Recruitment Agency Services. The appellant filed the reply to the show cause notice and after following the due process, the Asstt. Commissioner vide his Order-in-Original dated 31.12.2012 confirmed the services tax amounting to Rs. 2,14,687/- along with interest and also imposed penalty under Section 77 & 78 of the Finance Act, 1994. Aggrieved by the said order, the appellant filed the appeal before the Commissioner (Appeals) vide his Order- in-Appeal partially accepted the appeal by confirming the demand of Rs. 81,282/- along with interest and penalty. Hence, the present appeal.
3. As appellant has pleaded his inability to engage a counsel on account of his poor condition, the Bench requested Ms. Krati Singh, Advocate to act as amicuscurie for which she agreed.
4. Ld. Counsel for the appellant submits that the impugned order is not sustainable in law as the same has been passed beyond the show cause notice and the Order-in-Original. She further submits that in the impugned order, the Ld. Commissioner has held that the appellant has recovered the service tax from Markfed for supplying labour on daily basis and loading & unloading. She further submits that neither in the show cause notice nor in the Order-in-Original it has been mentioned that the appellant has recovered the service tax from the Markfed. She further submits that this finding of the 3 ST/51879/2014 Commissioner under Section 73A of the Act is beyond the show cause notice and the Order-In-Original. She further submits that the appellant does not fall in the definition of Manpower Recruitment Agency Services as provided in Section 65(68) which is reproduced herein below:-
"manpower recruitment or supply agency" means any person engaged in providing any service, directly or indirectly, in any manner for recruitment or supply of manpower, temporarily or otherwise, to any person.
4.2 She further submits that the entire demand is barred by limitation as the show cause notice was issued on 20.04.2011 for the period 10.07.2006 to 30.11.2007. She further submits that the revenue has failed to prove any of the ingredients mentioned in Section 73(1) for invoking the extended period namely;
"(a) fraud; or
(b) Collusion; or
(c) willful mis-statement; or
(d) suppression of facts; or
(e) contravention of any of the provisions of this Chapter or of the rules thereunder with intent to evade payment of service tax".
5. On the other hand, Ld. AR reiterated the findings of the impugned order.
6. After considering the submissions of both the parties and perusal of the material on record, we find that the appellant is only supplying the labour on daily basis and also for loading & unloading 4 ST/51879/2014 to Markfed but he does not fall under the definition of Manpower Recruitment Agency as provided in Section 65(68) of the Finance Act, 1994 and therefore not liable to pay any service tax on the said charges.
7. Further, we find that the impugned order is beyond the show cause notice and the Order-in-Original because in the show cause notice as well as in the Order-in-Original it has not been stated that the appellant has recovered service tax from the Markfed and not deposited the same to the Government Exchequer in terms of the provisions in Section 73(A) of the Act. This finding of the Ld. Commissioner (Appeals) is not sustainable in law as the same is beyond the show cause notice and the Order-In-Original and further alleged services for loading and unloading Taucks/LCV are not covered under manpower recruitment or supply agency as provided in Section 65(68) of the Finance Act, 1994.
8. In view of this, we hold that the impugned order is not sustainable in law and thereafter, we set aside the same by allowing the appeal of the appellant with consequential relief if any, as per law.
(Operative part of the order pronounced the open court) (S. S. GARG) MEMBER (JUDICIAL) (P. ANJANI KUMAR) MEMBER (TECHNICAL) Kailash