2025 (11) TMI 1273 - AT - Central Excise

Job-work fabricating structural steel held non-dutiable; sub-contractor exempt under Board Circular No.147/16/2011, limitation demand quashed

M/s Betterman Engineers Pvt. Ltd. and Sri Dinesh Kumar Jaiswal, Director Versus Commr. of Central Excise, Kolkata-II

CESTAT Kolkata allowed the appeal, holding that the appellant's job-work of fabricating structural steel from raw materials supplied by the main ... Process of job-work amounting to manufacture or not - appellants were engaged in the job work of fabrication of structural steel for various plants, power plant, cement plant, railways, Flyover etc. as per drawing and specification provided by the client - construction of road is specifically excluded from the scope Service Tax liability or not - suppression of facts or not - invocation of extended period of limitation - HELD THAT:- The appellant has been receiving the basic raw materials from SENBO, who were the main contractor for laying of roads and fly-overs. They have specifically told the appellant that no Service Tax is payable on the activity undertaken by the appellant. It is found that the Board Circular No.147/16/2011 dt 21.10.2011, clarifies that when the contract is on Works contract basis, and the same is exempted from payment of Service Tax for the main contractor, similar exemption would be available to the sub-contractor also when he also undertakes the same WCS. In the present case, the Dept. has proceeded right from 2009 onwards with the view the activity undertaken by the appellant is covered under Service and have demanded the Service Tax. After coming to know that they are eligible for Service Tax exemption, no further steps were taken against the appellant. The investigation was taken up much later in September 2013 and SCN was issued in 2014, demanding the Excise Duty on the job-worked goods. The appellants have provided documentary evidence to the effect that they have received the raw materials from the client and sent back the same after completing the job-work under the Challans given by the client. They have followed the proper procedure for such job-work undertaken by them - there was no suppression on the part of the appellant at any point of time. As a matter of fact, it is the Dept, which has interpreted the activity in two different ways to issue the SCN for the extended period - there are no merits in invoking the suppression clause against the appellant to fasten the demand for the extended period. Appeal allowed. 1. ISSUES PRESENTED AND CONSIDERED 1. Whether the activity undertaken by the appellants - fabrication of structural steel supplied by the contractee and returned after job-work - constitutes manufacture attracting Central Excise duty under Section 2(f) of the Central Excise Act, 1944, or amounts to a service (business auxiliary/service relating to works contract) attracting Service Tax treatment. 2. Whether the Department can invoke extended period of limitation by alleging suppression and demand excise duty for earlier years where it had earlier treated the activity as service and/or had conducted EA-2000 audit with no further action taken because of claimed Service Tax exemption; and whether invocation of suppression clause is sustainable where the appellants acted on a bona fide belief based on Board clarification and conduct of the Department. 2. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Classification: manufacture (excise) v. job-work/service Legal framework The determination requires application of statutory definition of manufacture (Section 2(f), CEA 1944) and the scheme for levy of Service Tax on business auxiliary services/works contract services as relevant then; Board circulars and departmental practice on classification and exemptions are relevant in ascertaining legal characterisation and reasonable belief. Precedent Treatment The Tribunal relied on the Board Clarification (Circular No.147/16/2011 dated 21.10.2011) which clarified that where the main contract is a works contract exempt from Service Tax, a sub-contractor undertaking the same works-contract service is similarly entitled to exemption; the Department had consistently earlier viewed the activity as a service and raised Service Tax queries/audit observations rather than excise demands. Interpretation and reasoning The Court examined the factual matrix: raw materials/steel were supplied by the contractee; the appellants fabricated as per drawings and specifications and returned the fabricated structures under Annexure-II challans and client-supplied challans; transport and inspection were carried out by/for the client. The Department's conduct from 2009 through the EA-2000 audit in 2012 was to treat the activity as service and thereafter to stop proceedings when it was informed that the works contract activity was covered by Service Tax exemption. The appellants followed job-work procedure, did not avail Cenvat credit, and produced documentary proof of receipt and return of materials. Ratio vs. Obiter Ratio: Where (a) inputs/raw materials are supplied by the contractee, (b) the job-worker returns fabricated items to the contractee under challans issued by the contractee, (c) the departmental practice and Board clarification treated the activity as a service/works contract activity exempt from Service Tax, and (d) the job-worker did not avail excise credit or otherwise act as an independent manufacturer, the activity cannot be characterised as manufacture attracting excise duty; a bona fide belief arising from authoritative Board clarification and consistent departmental treatment precludes re-characterisation to excise liability for earlier periods without cogent contrary evidence. Conclusions The Court concluded that the appellants' operations amounted to job-work/service (business auxiliary/works contract service) rather than manufacture for excise purposes, in view of client-supplied materials, procedure of receipt and return under client challans, and the Board clarification extending exemption to sub-contractors. The Department's subsequent change of view to treat the activity as manufacture did not override the contemporaneous factual and legal matrix supporting service classification. Issue 2 - Time-bar/extended period and allegation of suppression Legal framework Rules on limitation and extended period of demand require proof of suppression or fraud to sustain demand beyond the normal limit. The principles governing invocation of extended period include necessity of demonstrable concealment or intentional suppression by the assessee; conduct of the Revenue and the assessee's bona fide belief based on official clarification bear on whether suppression existed. Precedent Treatment The Tribunal relied on the established approach that a change in departmental view after prolonged acquiescence, audit inspection, and reliance on Board circulars does not automatically justify invocation of extended limitation unless suppression is proved; prior departmental notice classifying activity as service and subsequent inaction are relevant in assessing whether there was deliberate concealment. Interpretation and reasoning The Court observed that the Department repeatedly treated the activity as a service from 2009, raised queries and conducted EA-2000 audit in 2012, and then took no further action once the appellants and the Department recognized Service Tax exemption. The SCN demanding excise duty was issued much later (investigation begun in Sept 2013; SCN in July 2014). The appellants produced documentary evidence of correct job-work challans and absence of Cenvat credit. The Court held that these facts demonstrate absence of suppression or intent to evade and that the appellants entertained a bona fide belief in light of Board clarification that the activity was exempted as works contract/sub-contractor service. Ratio vs. Obiter Ratio: Extended period cannot be invoked where the Department had earlier treated the activity as service, had audit interactions without pursuing excise demand, and the assessee acted on a reasonable and documented belief grounded in Board clarification; absence of concealment negates applicability of suppression clause for extended demand. Conclusions The Court held there was no suppression by the appellants and set aside the impugned order on account of time-bar. The invocation of extended limitation for excise demand was rejected because departmental conduct and the appellants' bona fide belief and documentary compliance evidenced no deliberate concealment warranting extended period demands. Overall Disposition The Court allowed the appeal, set aside the impugned demand/order on the ground of time-bar arising from absence of suppression, and granted consequential relief as per law. The Tribunal's decision rests on factual findings about materials supplied by the contractee, job-work procedures under client challans, prior departmental treatment as service, and applicability of Board clarification supporting a bona fide belief that excise demand was not due.