TaxTMI 
TaxTMI 
2018 (8) TMI 253
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....Parekh & Co. For the Respondent : Mr.Sanjay Jain, D.R. & Mr. G.R. Singh, D.R. ORDER Per : Rachna Gupta Present order disposes of several appeals as detailed below being filed by the respective appellant being aggrieved by the respective orders as detailed below. All these appeals are taken together because of the question for consideration for them being similar. Hence, all are disposed of by the present common order. 2. The facts found in these appeals as relevant for present adjudication are as follows:- 2.1 That the appellants herein are the house labour contractors of M/s. Larsen & Toubro Ltd. (L & for short) who is the principal manufacturer of transmission towers and is getting one or the other job work for the purpose from all the appellants. On an intelligence being gathered by the Department, the Regional Unit of Indore, it was alleged that the appellants are performing such activities for the L & T which falls under the definition of Business Auxiliary Services against the charges received for the purpose. However, they are not paying the due Service Tax on the gross amount received by them from L & T. They deliberately have not got registered themselves with the Se....
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....13 ST/57437/2013-DB Paramjeet Singh 22.03.11 01.04.06 to 31.12.10 Processing of goods involving the activity of materials, loading at steel yards, unloading of receipt materials at steel yards, straightening of material, cylinder receipt & stacking, identifying the materials as per indent, removing the same from stack lifting, moving to shop floor and placing the material near to respective machine sequentially/ priority wise, wire receipt and stacking, on the raw materials/ inputs, etc. etc. 29.03.12 06/02/2013 ST/52593/2014-DB C P Moury 22.03.11 01.10.06 to 31.12.10 Fabrication of tower parts including shearing, cutting, punching, numbering, notching, marking, drilling debarring and getting inspected through QA. 16.03.12 28/01/2014 ST/50101/2015-DB C P Mourya 18.04.12 01.01.11 to 31.03.12 Fabrication of tower parts including shearing, cutting, punching, numbering, notching, marking, drilling debarring and getting inspected through QA. 30.08.13 24/09/2014 ST/50102/2015-DB Sanjay Kumar Yadav 17.10.12 01.01.11 to 31.03.12 Fabrication of tower parts including shearing, cutting, punching, numbering, notching, marking, drilling debarring and getting inspected ....
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....d through QA. 17.02.14 14/10/2014 ST/50328/2015-DB Anil Kumar 14.08.13 01.04.11 to 31.03.13 Fabrication of tower parts including shearing, cutting, punching, numbering, notching, marking, drilling debarring and getting inspected through QA. 12.02.14 14/10/2014 ST/50329/2015-DB Meena Industries 03.10.12 01.04.11 to 31.03.13 Fabrication of tower parts including shearing, cutting, punching, numbering, notching, marking, drilling debarring and getting inspected through QA. 17.02.14 14/10/2014 ST/50382/2015-DB Majister Singh 16.09.13 01.04.11 to 31.03.13 Fabrication of tower parts including shearing, cutting, punching, numbering, notching, marking, drilling debarring and getting inspected through QA. 14.02.14 14/10/2014 ST/50325/2015 Bir Bahadur Yadav 18.04.2012 01.01.11 to 31.03.11 Fabrication of tower parts including shearing, cutting, punching, numbering, notching, marking, drilling debarring and getting inspected through QA. 30.08.13 14/10/2014 ST/50325/2015 Sulakhan Singh 18.04.2012 01.01.11 to 31.03.11 Fabrication of tower parts including shearing, cutting, punching, numbering, notching, marking, drilling debarring and getting inspected through Q....
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.... Business Auxiliary Service in Section 65 (19) of the Finance Act. Any alleged infirmity in the order is vehemently denied and appeals are prayed to be rejected. 6.1 In support of his argument ld. DR relied upon the following case laws:- 1. CCE, Bangalore-II vs. Osnar Chemical Pvt. Ltd. - 2012 (276) ELT 162 (SC) 2. Haryana State Electricity Board, Steel STR.FAB. Workshop vs. ACC & CE - 2008 (221) ELT 198 ( P & H) 3. Collector of C. Ex., Jaipur vs. Pratap Rajasthan Special Steel Ltd. - 1999 (108) ELT 437 (Tri.) 4. PSL Ltd. vs. CCE, Rajkot - 2009 (16) S.T.R. 247 (Tri. - Ahmd.) 5. CCE , Chennai-II vs. Tarpaulin International - 2010 (256) ELT 481 (SC) 6. Orient Packaging Ltd. vs. CCE, Meerut-I - 2011 (23) STR 167 (Tri.-Del.) 7. Rathore Engg. Works vs. CCE, Chandigarh - 2012 (27) STR 37 (Tri.- Del.) 7. After hearing all the parties, we are of the considered view that the issues to be decided herein are: (1) whether the activities of the respective appellant as mentioned above are classifiable as business auxiliary service or as manufacture. (2) Whether the appellant is entitled for the benefit of exemption Notification No. 6/05 dated 1st March, 2005. (1) For adjudicat....
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....here previously, and which change facilitates the utility of the product for which it is meant, then the process is not a simple process, but a process ancilliary to the completion of a manufactured product. It was also held that when adopting a particular process, if a transformation takes place, which makes the product have a character and use of its own, which it did not bear earlier, then the process would amount to "manufacture"." 8. Now coming to the authority as is relied upon by the appellant i.e. Mahindra & Mahindra (supra), it is observed that finding of Larger Bench of Tribunal therein are as follows:- 10.There can be no dispute over the proposition that immovable property, be it immovable steel structure embedded in earth or a constructed building, cannot be subjected to excise duty which applies to excisable goods, i.e. to movables. In the making of an immovable structure or building are used a variety of movable. Raising iron and steel structures like sheds involves fabrication work and many of the articles used in raising the structure come into existence through fabrication as per the pre-determined design to be fitted into the structure that is to be raised. For....
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....ority, say that these dismantled parts of the structures are raw material used in its original form and that mere cutting or drilling holes has made no difference. The items in the parenthesis of Heading 7308 described as excisable goods include roofs, roofing frame-work, doors, windows and their frames, thresholds for doors, shutters, pillars, column, balustrades pillars, sheets of iron and steel, each one of these items has a complete distinct identity. The contractor undertaking the works contract for erecting a structure may not himself manufacture all such items used for structure. He may order the doors and windows to be made by a particular manufacturer and roof frame-work by the other, depending on the specialization and expertise of the manufacturer of different items. The contractor may supply designs and raw material for various parts of structures and get the work done on job work basis. To save time and expenses he may get the fabrication done at the site of construction instead of getting it done at some distance in a factory. When the required parts are fabricated they will be fixed as per the designed structure and will continue to be moveable object until made immo....
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....e final product for which it has been so customised. 10. The another peculiar fact of the present case which distinguishes it from the case law as relied upon by the Department is that the final product here is a transmission tower, which is to be removed from the premises of L & T in CKD condition only i.e. all such parts as processed by the appellants herein shall be cleared from L & T premises in unassembled form, though together, to be finally assembled at the site of the client in the form of a transmission tower. Thus, it become clear that the processes undertaken by the appellants on the raw-material provided to them by L & T in L & T's own premises are nothing but the processes to convert the said raw-material into a customized part of the whole transmission tower and as such, to our opinion, the activity of the appellants is incidental/ ancillary to the completion of the manufactured product and thus, falls under Section 2 f (i) of Central Excise Act, 1944. Brakes India Ltd. case (supra) is again relied upon. At this stage clause 5 of Section 65(19) of Finance Act, 1994 defining BAS is perused. It is clear that it includes the activity which is production or processing of....