TaxTMI 
TaxTMI 
2017 (6) TMI 464
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....termediate products. The Revenue felt that the process at the job workers end involved complete manufacture of excisable goods and Service Tax was not applicable in terms of Notification No.08/2005-ST dt. 01.03.2005 as amended by the Notification No.19/2005-ST dt.07.06.2005. The period involved is 2005-06 to 2008-09. A show cause notice was issued. On adjudication, the demand of Rs. 4,59,579/- was confirmed along with interest and imposition of penalty of equivalent amount. The appellant went in appeal wherein the adjudication order was upheld and their appeal was rejected. Aggrieved from the same, the appellant has filed this appeal. 3. Ld.Consultant for appellant submits that they had supplied Tin Sheets to their job workers for the pu....
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....opal - 2005 (181) ELT 58 (Tri.-Del.) He also argued that it was the choice of the job workers as to whether they would avail the benefit of exemption Notification No.19/2005-ST dt.07.06.2005 or not He also argued on limitation stating that they had duly reflected the Cenvat Credit availment and utilization particulars in their ER-1 returns and the said fact is also admitted at page 3 Para 2(c) of the SCN. 4. Ld.AR reiterated the findings in the order of Ld.Commissioner (Appeals) and relied upon the following case law:- (i) CCE, Kolkata-IV Vs. M/s.Hindustan Motors Ltd. Vide Final Order No. FO/A/76153/2016 in Appeal No.E/53/08 dt.24.10.2016 5. Heard the parties and perused the record. 6. We find that the show cause notice....
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....d by the department and the payment of duty was also duly accepted. We find absolutely no substance in the attempt of the learned Commissioner to convert a part of the duty so paid into deposit of duty. There is no legal basis for such presumption. The rules entitled the receipt manufacturer to avail of the benefit of the duty paid by the supplier manufacturer. A quantum of duty already determined by the jurisdictional officers of the supplier unit cannot be contested or challenged by the officers in charge of recipient unit [2000 (38) RLT 179]." Further, once the Department accepts the Service Tax without any protest and not inform the assessee that their process was not subject to Service Tax, the credit of the Service Tax paid c....
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....d negate the entire object of the Cenvat credit scheme which has been put in place with a view to protect the assessee from double taxation. Thus, on this count also, the impugned orders are not sustainable." 7. We also find that Notification No.8/2005-ST is a conditional notification and its availment was not mandatory. In this regard, this Tribunal in the case of Federal Mogus Goetze India Ltd. Vs. CCE, Bangalore - 2015 (318) ELT 340 (Tri.Bang.) held as under:- "11.2 The job worker-appellant has chosen to pay service tax during the period April, 2005 to January, 2007 (in respect of April, 2005 to December, 2006, they paid later in August, 2007) and also during the period January, 2008 to June, 2008. The finding of the Commissi....
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....goods so as to complete part or whole of production, subject to the condition that such production does not amount to manufacture within the meaning of clause (f) of Section 2 of the Central Excise Act, 1944 (1 of 1944); (ii) "appropriate duty of excise" shall not include Nil rate of duty or duty of excise wholly exempt." 11.4 The above notification has been issued under Section 93(1) of the Finance Act and the exemption is subject to the condition that appropriate duty of excise is paid by the sender of the raw materials or semi-finished goods. In other words, any job worker who undertakes services of processing is not free to opt for the benefit of the said notification unless the recipient of the services pays appropria....