Customs, Excise and Gold Tribunal - Bangalore
Renu Singh And Co. vs The Commissioner Of Customs And Central ... on 12 March, 2007
Equivalent citations: [2007]10STJ123(CESTAT-BANGALORE), 2007[7]S.T.R.397
ORDER S.L. Peeran, Member (J)
1. The stay and appeal are taken up together as the issue is covered by three rulings of the Tribunal rendered on this very issue involved in the appeal.
2. The appellants were providing labourers for assisting in Cement loading which was fully mechanized to their principal clients viz. M/s. Orient Cement. The Department has considered the supply of labourer to come under the category of "Cargo Handling Services". The appellants have subsequently registered under "Manpower Recruitment Agency" and have been paying Service Tax. For the period in question, they have contended that supplying labourer for helping in mechanized loading of Cement will not come under the category of 'Cargo Handling Service'. This view has been affirmed by this Bench in Final Order No. 174/2007 dated 22.01.2007 in the case of Shri K.K. Appachan v. CCE. The findings recorded in para 9 are reproduced herein below:
9. I have gone through the records of the case carefully. The main contention of the appellants is that the entire system of packing of cement, loading and unloading of the same is mechanized. The appellants supplied labourers who play an ancillary role in the entire set of activities. Further it has been stated that this issue has already been settled in the decision of the Tribunal relied on the appellants. The Commissioner (Appeals) has not accepted the contention of the appellants on the ground that as per the contract, amounts are paid to the appellants on the basis of the number of cement bags loaded and not on the basis of the man power supply. After going through the decision cited by the learned Advocate, I find that the situation in the present appeal is identical to the one decided by Northern Bench of the Tribunal and relied on by the appellants. The Revenue has not disputed the fact that the appellants supplies labourers to M/s MCL. The appellant is in possession of licence from the Labour Department. In the course of hearing, the learned advocate for the appellant stated that the appellant has already paid the service tax under the category of manpower recruitment agency. Once the department accepts the fact that the appellant's case falls under the category of "manpower recruitment agency" and collects service tax under that category, they cannot say that during an earlier period they would be coming under cargo handling service. From the photographs supplied by the appellants, we find that the labourers supplied by the appellants only rendered certain assistance in the entire activity of packing, loading and unloading of the cement bags. Their role is only ancillary. The ratio of the Tribunal's decision is clearly applicable to the present case. The Tribunal has held the following:
...The facts and circumstances make it clear that the appellant is not rendering cargo handling service. In the given factual situation, cargo handling cannot take place in the absence of packing machine and conveyer. The appellant has no control on them. The appellant is right in his contention that it is only supplying manpower and supplying, manpower cannot be equated with providing the service in question. If such a view is taken, who ever supplies the manpower for an activity would become the provider of the activity itself. If manpower is supplied for construction, the manpower supplied would become the builder. This view is against the specific definitions of various services in the statute.
Thus in the above decision, the Tribunal has held that the supplying labourers cannot be equated with the service of cargo handling even though they played some roles in the handling of the cargo. Since the facts in both the cases were identical, ratio of the above decision is clearly applicable to the present case. I also take into account the fact that the department has already brought the appellants within the ambit of service tax under the category of "manpower recruitment agency". In the result, the impugned order has no merit. The appellant is not liable to pay service tax under the category of cargo handling service. Moreover as the issue involves interpretation of law, the longer period cannot be invoked. The appellant is not liable for payment of interest and various penalties under the Finance Act, 1994. In the result I allow the appeal with consequential relief.
Similar view has been expressed by this bench in S.N. Uppar and Co. v. CCE, Belgaum 2006 (4) STR 368 (Tri.-Bang.) and in J and J Enterprises v. CCE, Raipur 2006 (3) STR 655(Tri.-Del.). In view of the issue being identical one in K.K. Apachan's case, the finding portion of which is extracted supra, we are of the considered opinion that the said order would apply to the facts of the present case. Therefore, the stay application and appeal are allowed with consequential relief, if any.
(Pronounced and dictated in open Court)