2010 (11) TMI 3

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....pect of what was held to be business auxiliary service . This case is being taken up in terms of the Hon ble High Court s directions contained in order dated 1.10.2008 in Writ Petition No 6375 of 2008 reported in 2008 (12) STR 549 (Bom). It appears from the records that the appellant had filed an application for early hearing of the appeal in November 2008. This application registered as ST/MA/EH/2355/08 has become infructuous now that the appeal is being taken up for final disposal. The application stands dismissed as infructous. 2. After hearing both sides, we find that the short question to be considered, in this case, is whether the job work activity undertaken by the assessee during the period of dispute would constitute a business ....

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....ld be one excisable. It is submitted that the products in question were not excisable to Central Excise duty and, therefore, the above activity cannot be held to be amounting to manufacture. 4. After considering the submissions, we find that the view taken by the Revenue is not in keeping with the legislative intent underlying the above definition of business auxiliary service . The legislative intent was clearly brought out in the Board s circular, the relevant portion of which reads as follows: 3.2 In the draft circular dated November, 2006, it was mentioned that as alcoholic beverages are not covered under central excise law, the production of beverages would not fall within th meaning of manufacture within the meaning of clause (f....

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....lusion clause under BAS, which refers only to the activity amounting to manufacture within the meaning of section 2 (f), would still apply to such processes, whether or not the resultant product are excisable goods. Such is the case of production of alcoholic beverages, which qualifies to be a process amounting to manufacture within the meaning of section 2 (f), when read with the relevant judicial pronouncements, because a new product, with a distinct name, character or use; and capable of being marketable, emerges; and (b) In the instant case the exclusion provision under the definition of Business Auxiliary Service (under the Finance Act, 1994) makes a reference to a definition (of the word manufacture ) figuring under another Act (i.....