A V B Handling Vs C.C.E. & S.T (CESTAT Ahmedabad)
CESTAT Ahmedabad held that as the service charges are based on metric tons of the goods handled and not on the basis of wages of laborers deployed for the job, the activity of the loading, unloading of goods at port, cutting of bags, spreading of zola, cleaning of jetty is classified under Cargo Handling Service.
Facts- The appellant are engaged in providing the cargo handling service at Kandla Port to its various clients. The service includes loading, unloading of goods at port, cutting of bags, spreading of zola, cleaning of jetty. The appellant are paying service tax under the category of cargo handling services on 75% of the value of the service. The case of the department is that the appellant have deputed his labour for the aforesaid work, hence, the service is classifiable under Manpower Recruitment or Supply Agency Service u/s. 65(105). Accordingly, the demand for differential service tax amounting to Rs. 14,92,988/- was raised.
Conclusion- Held that the appellant have been charging their service charges on the basis of metric tons of the goods handled by them and not on the basis of wages of laborers deployed for the job. The above invoices supported the claim of the appellant that the service was correctly classifiable under cargo handling service and not under Manpower Recruitment or Supply Agency Service.
Held that the appellant’s service is correctly classifiable under cargo handling service as claimed by the appellant and not under manpower recruitment or supply agency service as alleged by the Revenue.
FULL TEXT OF THE CESTAT AHMEDABAD ORDER
The brief facts of the case are that the appellant are engaged in providing the cargo handling service at Kandla Port to its various clients. The service includes loading, unloading of goods at port, cutting of bags, spreading of zola, cleaning of jetty. The appellant are paying service tax under the category of cargo handling services on 75% of the value of the service. The case of the department is that the appellant have deputed his labour for the aforesaid work, hence, the service is classifiable under Manpower Recruitment or Supply Agency Service under Section 65(105). Accordingly, the demand for differential service tax amounting to Rs. 14,92,988/- was raised.
2. Shri Abhishek Doshi, Learned Chartered Accountant appearing on behalf of the appellant submits that the job performed by the appellant is loading, unloading of goods at port, cutting of bags, spreading of zola, cleaning of jetty etc. at Kandla port to various clients. The said service is correctly classifiable under Cargo Handling Service. He submits that merely because the appellant have deputed some manpower for performing his job to the client, the department has wrongly interpreted that the appellant had provided the Manpower Recruitment or Supply Agency Service. It is his submission that the contract with their client is on work basis and not on the basis of labour deputed for the job. The client is concerned with the particular job and not concerned with the number/skill of labour deployed for the job. He also submits that the control of the manpower is undisputedly with the appellant and not with the service recipient, therefore, the service is not classifiable under Manpower Recruitment or Supply Agency Service. He also refers to the confirmation letter from the various clients regarding nature of service whereby he submits that the service which the appellant had provided is particularly work at port and not Manpower Recruitment or Supply Agency Service to the client. He submits that on the identical issue in various decisions it was held that the service will not be classifiable under Manpower Recruitment or Supply Agency Service. He placed reliance on the following judgments:-
