Custom, Excise & Service Tax Tribunal
Cce, Jaipur vs M/S. Kumar Engineering & Contractors on 14 July, 2009
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
West Block No.2, R.K.Puram, New Delhi-110066.
Principal Bench, New Delhi.
ST/290/06
(Arising out of Order-in-Appeal No.109(MPM)ST/JPR-1/2006 dt.20.4.06 passed by Commissioner(Appeals), Jaipur)
CCE, Jaipur Appellant
Versus
M/s. Kumar Engineering & Contractors Respondent
, Appearance Sh. S.Chand, DR For Appellant Ms. Ashmita Nayak, Adv. for Respondent Coram: Honble Mr. D.N.PANDA, JUDICIAL MEMBER Honble Mr. RAKESH KUMAR, MEMBER (TECHNICAL) Date of decision: 14.7.09 Order No._______________________________ Per D.N.Panda:
Ld. DR Shri Chand submits that Revenue has come in appeal challenging the order passed by the Learned Commissioner(Appeals). That authority held that the respondent was not providing taxable service under the category of Manpower Recruitment Agency and Cargo Handling for which the demand was unsustainable. The case was made against the appellant on the information that various activities carried out by the respondent squarely fall under above two categories. One category is Manpower Recruitment Agency Services while the second one is Cargo Handling Services.
2. Ld. Adjudicating Authority examined various activities carried out by the appellant in details available as exhibited in para 3.6 of order of adjudication. Finally that authority had the issue before him as to whether the respondent had provided cargo handling services as well as manpower recruitment services to the service recipient M/s. Balkrishna Industries Ltd., Bhiwadi. That authority held that the respondent was liable to tax under aforesaid two categories. Ld. Commissioner should not have ignored the findings of the Ld. adjudicating authority for which the adjudication order is required to be restored. Ld. DR also submits that when the bills were submitted by the respondent to M/s. Balkrishna Inds. Ltd., that industry has paid service tax to the respondent.
3. Ld. Counsel Ms. Ashmita Nayak submits that when a particular category of service was not liable to tax before 16.6.05, that should not be taxable. Supply of manpower came to statute book w.e.f. 16.6.05. The activity carried out by the labourers was for loading and unloading of goods within the factory which is not Cargo Handling Services since cargo does not go out of the factory. Therefore, Ld. Commissioner(Appeals) has rightly passed the order.
4. Heard both sides and perused the records. Ld. Commissioner(Appeals) in para 2 has clearly brought out that only for the service of supply of labour and handling of the goods inside the factory, the respondent was brought to charge under the category of manpower recruitment agency and cargo handling service. In para 6 of the order, the ld. Commissioner has reflected his mind how he has examined the case record as well as the respondents submission. That authority has noticed that the gross value received to the tune of Rs.15,66,569/- relating to supply of manpower related to the period prior to 16.6.05. This aspect has been settled by him in para 7.1 of the appellate order. When we notice that supply of manpower was taxed for a period when the law did not provide a levy for the same, the appellant cannot be asked to pay taxes under such category of manpower recruitment agency.
5. So far as the cargo handling is concerned, Ld. Appellate Authority has applied his mind in terms of para 8 & 9 of the appellate order. While doing so, he has examined the case record. When both the authorities were in quarrel as to realization of the service tax by one or the other, we had the invoice copies appearing at page 44 to 52 to see. None of these pages are reflecting that there was realization of service tax. When the service tax was not realised, the appellant was not directed to deposit the same. Further, activity carried out by the labourers was found to be loading and unloading of the raw-material/semi-finished goods and final products inside factory. Those are not proved to be carried out beyond the factory by revenue. Therefore, Ld. Commissioner has discharged the respondent from the charge of taxability under the cargo handling service. There is no other evidence available on record to hold otherwise. In absence of any cogent evidence and for observations made as aforesaid, by Ld. Commissioner(Appeals) and on the basis of materials on record, order of Ld. Commissioner(Appeals) cannot be impeached. We order accordingly and dismiss Revenues appeal.
Order dictated in the open Court.
(D.N.Panda) Judicial Member (Rakesh Kumar) Member Technical km