The CESTAT Mumbai held that the company was providing cleaning services through the Manpower engaged by it, who were under the administrative and supervisory control of the company and the same cannot be treated as Manpower, recruitment or Supply Services.
The ruling was made by a division bench comprising of Judicial Member Dr. Suvendu Kumar Pati and Technical Member C J Mathew in the case of Mankeshwar Enterprises. Vs. Commissioner of Central Excise.
The appellant was engaged in activities of providing services to various educational Institutions belonging to the D.Y. Patil group. The respondent department indicated that the appellant was engaged in providing manpower supply services which were become taxable w.e.f. 16-6-2005. The appellant was put to notice for non-payment of Service Tax the financial year 2005-2008. Through adjudication process duty demand, along with interest and penalties were confirmed.
The appellant submitted in the light of judicial decision reported in 2017 (3) G.S.T.L 515 (Tri. Mum.) in the case of Bhagyashree Enterprises v. C.C. Pune that the terms of agreement clearly provides that there was no whisper of supply of manpower by the appellant and the work is in the nature of cleaning services provided by appellant to D.Y. Patil Hospital and Research Institute, which, as per Section 65 and Section 105 of the F.A. 1994, is not a taxable service since provided to educational Institution which is neither a commercial or industrial establishment.
The department submitted that contract between the appellant and institution is loud and clear that the activities were manpower supply services covering a bundle of services including maintenance, gardening, housekeeping, etc.
The tribunal held that it is a well-settled principle that contract executed between the parties would determine the nature of work and there is no whisper of supply of manpower in the said contract. It is apparently clear that the appellant was providing cleaning service through manpower engaged under its control and supervision and not supplied manpower to the service receiver to undertake cleaning service under the control and supervision of the service receiver.Subscribe Taxscan AdFree to view the Judgment