Case Law Details
India Yamaha Motors Pvt. Ltd. Vs. Commissioner of Customs (CESTAT Delhi)
For the demand relating to the period from 1 April, 2012 to 1 July, 2012 i.e. pre negative list period:
The definition of manpower recruitment and supply agency is relevant for the impugned adjudication. Section 65(68) of the Act defines manpower recruitment and supply agency to mean any person engaged in providing any service, directly or indirectly, in any manner of recruitment or supply of manpower, temporarily or otherwise to a client. Section 65(105)(k) defines “ Taxable service means any service provided or to be provided to any person, by a manpower recruitment or supply agency in relation to the 4 ST/53046/16 recruitment or supply of manpower, temporarily or otherwise in any manner”.
A bare perusal of provision makes it clear that for any service to be covered within the ambit of manpower supply it should be provided by an agency who is engaged in providing specifically the service of recruitment or supply of manpower though on temporary or permanent basis. From the facts of the present case apparently and admittedly the holding company of M/s Yamaha in Japan is not a manpower supply agency. This particular observation is sufficient for us to hold that the adjudicating authority below has wrongly concluded for the impugned arrangement to be the service of manpower recruitment and supply service.
Also for the reason that the contract of employment between the appellant and the Japanese experts is clear enough to express that same is a contract of employment/appointment letter calling upon the said experts into the employment of the appellant whose reporting officer has to be employee of the appellant itself. Appellant only is disbursing the Provident Fund contributions and is also deducting tax at source. These observations are sufficient to corroborate the above observations of the impugned arrangement between the appellant and the Japanese experts to be that of a service and to not to be of manpower supply service. The circular as relied upon by the department is perused to be a draft circular. There is nothing on record about the same being ever notified. Thus, we are of the opinion that the adjudicating authority below has definitely committed an error while relying upon the draft circular.
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