TaxTMI 
TaxTMI 
2017 (12) TMI 1382
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.... GHOUSE,ZAFER ALI KHAN,K.V. SIDDAVERERAPPA,K.P. DUGGAPPA GOWDA,T. PERUMAL ,MOHAMMED IMAM,N. SHARIFF,JAVEED N. SYED,MANZOOR ALI KHAN,ABDUL MAJEED,SHEIK RASOOL SAS ,M.G. BASAVARAJ,HASSAN R.P,MATHEEN ALI KHAN,A. SUBHASHCHAND JAIN,H.R. VENKATESH,PRASANNA KUMAR R ,K. ASHOK ,SINGRI GOWDA,PUNDALIKA RAO,S.H. RAJASHEKAR,JAVEED N. SYED,SYED MUSTAFA ,MOHAMMD GHOUSE ,M.G. BASAVARAJ,MATHEEN ALI KHAN,P.R. CHANDRASHEKAR,MOHIDDIN GANGOLLI,ABDUL MAJEED ,FAROOQ JAHANGIR,T. PERUMAL VERSUS COMMISSIONER OF CENTRAL EXCISE, CUSTOMS AND SERVICE TAX Shri S.S Garg, Judicial Member And Shri V. Padmanabhan, Technical Member Mr. K. Parameswaran, Adv For the Appellant Mrs. Kavitha Podwal, AR For the Respondent ORDER Per : S. S. Garg These 43 appeals have been filed against three impugned Order-in-Appeal dated 7.3.2012, 20.3.2012 and 30.5.2012 passed by the Commissioner (A) whereby the Commissioner (A) has upheld the Order-in-Original but modified the original orders to the extent that the appellants are not liable to pay the portion of demand pertaining to Goods Transport Agency service and with regard to interest and penalty also re-quantification was ordered. 2. Since the issue in all the....
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....ch would be the sina qua non for considering any item as manufactured or produced. (iii) The standing crops and trees cannot become goods, but they become goods only upon they being felled and thereafter no activity amounting to processing has been undertaken by the appellant. (iv) No activity amounting to production or processing as understood in the common or commercial parlance has been undertaken by the appellant. (v) Hon'ble Supreme Court in the case of Saraswathi Sugar Mills Vs. Haryana State Board, reported in AlR 1992 SC 224, has clearly laid down that processing essentially effectuates a change in form, contour, physical appearance or chemical combination or otherwise by artificial or natural means and this requirement does not get satisfied in the facts and circumstances involved. (vi) The entire activity including transportation could not have been considered as rendering of a composite service Viz. Business Auxiliary Service. (vii) Demand made including for the transportation charges on which Service Tax has already been confirmed and demanded under the category of GTA on the said MPML would amount to double taxation. The....
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....should also be disposed of on same lines. 7. After considering the submissions of both the parties and perusal of the material on record, we find that the Division Bench of this Tribunal vide its Final Order cited supra has examined the identical issues and after examining the contention of both the parties, this Tribunal vide its Final Order in para 5 onwards has observed as under: "5. Learned advocate Shri K. Parameshwaran appearing for the appellants has drawn our attention to the definition of business auxiliary service as also to the fact that the activities undertaken by them cannot be held to be amounting to processing of the goods inasmuch as, they simpliciter cut the trees and debark them and after further cuttings transported the same. In any case, he assails the impugned orders on the point of limitation and further submits that the definition of business auxiliary service itself excludes the activity if the same amounts to manufacture in terms of clause 2 of Section 2 (f) of the Central Excise Act. By drawing our attention to Chapter 44 of the Central Excise Tariff Act, he submits that inasmuch as there is a change in the name, character and use of the final....
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....belongs to transport, he fairly agrees that if M/s Mysore Paper Mills Ltd have paid tax as a recipient of the said service, confirmation of demand on that value may not be justified. He also fairly agrees that some of the impugned orders where the Commissioner (Appeals) has granted relief on the said issue stands accepted by the Revenue and do not stand appealed against. 7. After considering the submissions made by both sides we find that the definition of business auxiliary service underwent amendment with effect from 16.6.2004. As the period involved is subsequent to the said amendment, we have to take into consideration amended definition. The amended definition of the business auxiliary service reads as under:- (19) "business auxiliary service" means any service in relation to (i) promotion or marketing or sale of goods produced or provided by or belonging to the client; or (ii) promotion or marketing of seruice provided by the client; or (iii) any customer care service provided on behalf of the client; or (iv) procurement of goods or services, which are inputs for the client; or [Explanation. - For the removal of d....
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....cutting of trees and then transporting the cut and debarked wood to the premises of their client. The appellants are required to convert the cut wood into billets of specific sizes, which sizes are fit for use in the pulp plant. The Hon ble Supreme Court in the case of M/s Saraswathi Sugar Mills and Others Vs Haryana State Board & Others [1992 (79) AIR 224 (SC)] has observed that whereas manufacture implies a change but every change is not manufacture and it is only when a different article emerges with a distinct name, character or use, it can be held to be the result of manufacture. As regards processing, Hon ble Supreme Court observed that processing essentially effectuates a change in form, contour, physical appearance or chemical combination or otherwise by artificial or natural means and in its more complicated form involves progressive action in performing, producing or making something..... As already observed by us that the appellants are required to deliver the wood to their client in the shape of billets of the specified dimensions, it has to be held that the cut wood has undergone changes. 9. Whether such changes amount to processing or amount to manufacture is anoth....
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....been the subject matter of various decisions of the Higher Courts. It stands held that the extended period can be invoked only when there is a positive evidence indicating any mala fide or suppression or misstatement on the part of the assessee with an intent to evade payment of duty. He submits that the service tax being a new law at the relevant period was not clear and there was scope of entertaining a doubt about leviability of the same. In any case, he submits that the fact of such contracts having been awarded by M/s Mysore Paper Mills was in the knowledge of the Revenue. In support of the above contention he draws our attention to an order passed by the Dy Commissioner of Central Excise in respect of Mysore Paper Mills for refund of service tax paid on GTA services. We have seen the said order being order-in-original No. 1299/2008. It stands held in para 5 of the said order that:- "I have gone through the records of this case and submissions made by the assessee during the Personal hearing. M/s MPM, Bhadravathi have placed work orders with different contractors for the extraction, collection, debarking, stacking along with transportation of ACASIA/eucalyptus pulp wo....