MEHRAJ KHAN Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THE Revenue has made a case against the appellant that they provided service of recruitment of temporary contract labour unskilled, semiskilled and skilled to Rajasthan Public Service Commission, Ajmer and Service Tax is payable on consideration received for such services rendered during the period October, 2004 to September, 2006. The Counsel for the appellants submits that prior to 16 -6 -2005, service in relation to recruitment of personnel only was taxable and not services in relation to supply of man power. The appellants were not recruiting any persons to be placed on the establishment of Rajasthan Public Service Commission. Therefore, for the period prior to 15 -6 -2005, demand is not sustainable.

(2.) FURTHER the Counsel submits that prior to 1 -5 -2006, services rendered by a 'commercial concern' only was taxable under Section 65(105)(k). The words 'commercial concern' was replaced by the words 'any person' only from 1 -5 -2006. The appellant is an individual. There are many decisions of the Tribunal to the effect that individuals cannot be covered by the expression 'commercial concern'. One such decision is that in Kripasindhu Mohapatra v. CCE - : 2011 (21) S.T.R. 559 (Tribunal). There have been a few Circulars of C.B.E. & C. also to that effect -One such Circular is 62/11/2003 -S.T., dated 21 -8 -2003 (para 1.3). Therefore, any demand prior to the date of 1 -5 -2006 is not sustainable.

(3.) FURTHER the Counsel submits that the value realized has to be considered as cum tax value because the appellant was not able to negotiate and recover any amount towards Service Tax from Rajasthan Public Service Commission.