RITESH ENTERPRISES AND KARWAR DOCK AND PORT LABOUR COOPERATIVE SOCIETY LTD. Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) BY this common order, we propose to dispose off the following appeals as the question involved in these appeals is the same.

(2.) THE relevant facts that arise for consideration are the appellants herein had entered into a contract with M/s Aspin Wall & Co and Central Warehousing Corporation (CWC) for the purpose of rendering services of feedings bags, for filling bulk, stitching, shifting back cargo, stacking, destalking, loading back cargo to the trucks, destalking and loading on trucks for wagon loading and transportation of the goods within the premises. The said contract was entered between the appellants and M/s Aspin Wall & Co and CWC, for handling various cargoes at Central Warehouse. On a specific intelligence, the lower authorities visited the premises of the appellants and resumed documents. On scrutiny of the said documents it was noticed by the officers of the revenue that the appellants were to provide all the service as enumerated above, had supplied labourers to M/s Aspin Wall & Co & CWC. On conclusion of the investigation and scrutiny of the documents and after recording the statements of various persons, the lower authorities felt that the services rendered by the appellant would fall under 'manpower recruitment & supply agency' and having not discharged the service tax liability, appellant are liable for discharging service tax liability for the period 16.6.05 to 13.12.2006 in Appeal No. ST/590/08 and for the period 16.6.12005 to 28.2.2007 in Appeal No. ST 591/08. Coming to such a conclusion, show cause notices were issued to the current appellants. The appellants filed a detailed reply to the show cause notice and contested each and every allegation made in the show cause notice. The main ground of the appellants before the adjudicating authority was that the contract which was given by M/s Aspin Wall & Co and CWC was a works contract and not for supply of labourers. It was also argued that the show cause notices are hit by limitation. The learned adjudicating authority after considering the submissions made by the appellant before him during the personal hearing and also considering the reply filed by both the appellants, came to the following conclusion.

(3.) LEARNED SDR on the other hand would submit that the contentions of the appellants cannot be accepted as the adjudicating authority has taken into consideration the entire facts of the case in both the appeals. It is her submission that the activities rendered by the appellant is for supply of laborers to M/s Aspin Wall & Co and to M/s CWC for handling specific items of work. It is her submission that it can be seen from the works order that the appellants were awarded the handling job and the appellant as a labour contractor working under license issued by Department of Labour, would directly indicate that the handling job nothing but supply of manpower. She would draw our attention to the scope of entry "Manpower Recruitment Agency" and submit that the doctrine of 'contemporanea expositio' may be invoked to cull out the intendment by removing ambiguity in its understanding of the statute by the executive. She relies upon the decision of the Supreme Court in the case of Indian Metals & Ferro Alloys Ltd. v. Collector of Central Excise : (1991) 51 ELT 165 (SC) for the proposition that decisions up to date and applied the doctrine to the understanding by the revenue of provisions in the Income Tax Act. She would draw our attention to the Master Circular dated 23.8.2007 more specifically to paragraph No. 010.02 which is in respect of supply of man power. She would read extensively from the said clarification.