2018 (5) TMI 1469

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....dents do not amount to 'manufacture‟, in terms of Section 2 (f) of the Central Excise Act, 1944 and the activity is squarely covered under 'Business Auxiliary Service‟ as defined in Section 65 (19) of the Finance Act, 1994. It further appeared that respondents were not eligible for exemption from payment of service tax under BAS as provided in Notification No.8/2005 dt. 1.3.2005 since the goods cleared by the 100% EOU were exempted under Notification No.24/2003-CE dt. 31.3.2003, 6/2002-CE and 6/2006-CE. Accordingly, show cause notice dt. 6.7.2009 was issued to the respondents, inter alia proposing demand of service tax of Rs. 48,95,506/- along with interest thereon for the period 10.09.2004 to 31.12.2008 and imposition of penalt....

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....'Nil‟ rate of duty or duty of excise wholly exempt. However as the goods produced by the EOU are exempt from duty in view of Notification No.6/2002-CE as amended, the benefit of exemption under BAS will not be available to the respondents. 3. For the respondents, Ld. Advocate Shri S. Durairaj supports the impugned order. He also made oral and written submissions which can be broadly summarized as under : i) Conversion of solar cells into solar panels by the process of lamination is amounting to manufacture since a new product emerges. Therefore, such process is not covered by the BAS. Ld. Advocate displayed a sample of the solar cell received from the principal (EOU) and also the solar panel array that emerges after job work activit....

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....006-CE are issued under Section 5A of the Central Excise Act, 1944. Proviso to sub section (1) of Section 5A states that unless specifically provided in such notification, no exemption therein shall apply to excisable goods manufactured by EOU. No specific provision is mentioned in the above notifications for EOU. Therefore, the exemption in these notifications is not applicable for EOU. Further, export of goods by an EOU under bond cannot be treated as exempted clearances or Nil duty clearances. Therefore, exemption under notification 8/2005-ST dt. 1.3.2005 is available for the period from 1.3.2005. Reliance is placed on the decisions rendered in the case of Interplex Electronic India P. Ltd. Vs CST Bangalore - 2014 (33) STR 56 (Tri.-Bang.....

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....narration/submission on the activities of 'lamination‟ presented by the respondent has not reasoned as to how this activity does not amount to 'manufacture‟ and that the original authority confirmed the demand on the basis of report of the jurisdictional Deputy Commissioner which was received only after the personal hearing granted to the respondent. We find that the lower appellate authority has correctly found fault in the original authority not having given an opportunity to the respondent to offer their comments or defend against the said report of the jurisdictional Deputy Commissioner. The lower appellate authority has then gone to thoroughly analyse the definition of 'manufacture‟ in Section 2(f) of the Central Exci....