2018 (10) TMI 17

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....efore, they are taken together for decision. 2. Brief facts of the case are that the appellant were situated at B-40 A, Sector 60, Noida and were engaged in manufacture of 'metal structure/mount-base of Dish Antenna' falling under Chapter 73 of Central Excise Tariff Act, 1985. The appellants were a proprietory concern. Officers of Central Excise visited the manufacturing unit of appellant on 02.04.2009. It came to the notice of the officers that appellant was situated on the ground floor of above stated address. Another unit by name M/s Sankalp Industries also was engaged in the same activities and it was situated as separate premises at C-102, Sector-2, Noida. The said firm worked in the said premises for six months and subsequently ....

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...., 2005 to March, 2010 and clubbed all the purchases by Prodelin India Pvt. Ltd. from appellant, Sankalp Industries and Shivani Industries and entertained a view that after clubbing the clearances appellant was not eligible to avail exemption under said notification and, therefore, through show cause notice dated 18.06.2010 appellant was called upon to show cause as to why Central Excise Duty amounting to Rs. 92,91,541/- should not be demanded from him after denying him the benefit of said Small Scale Exemption Notification with holding a view that clearance from all the three units were only by appellant. Further on scrutiny of the record it appeared to Revenue that appellant had collected around Rs. 59 lakhs as job work charges. The sai....

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....g separate books of accounts which were audited from time to time by statutory auditor and thereafter audited balance sheet, profit and loss accounts were drawn. Further it was submitted that Sankalp Industries was a partnership firm set up in August, 2005 and that the partnership deed was entered on 18.08.2005. M/s Sankalp Industries started manufacturing the same goods as that of appellant, at separate premises at Sector-2, Noida until February, 2006 and in February, 2006 they shifted their manufacturing activity to first floor of the premises where on ground floor appellant was operating. M/s Sankalp Industries entered into a separate leave and licence agreement dated 14.02.2006 with the landlord. M/s Sankalp Industries was having a s....

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..... Heard the learned counsel for the appellants. He has submitted that the demand of service tax is not sustainable because neither the show cause notice nor the Original Authority has examined whether the job work charges collected by the appellant were on account of job work amounting to manufacture or not. He has further submitted that if job work activity amounted to manufacture then service tax was not payable. The onus was on Revenue to establish that the job work did not amount to manufacture to demand service tax. Since the said burden was not discharged by Revenue, the demand of Service Tax and interest and penalty are not sustainable. He has further submitted that the appellant before Original Authority had submitted that the loans....