TaxTMI 
TaxTMI 
2023 (12) TMI 374
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....vided in the promo pack at their facility/ factory in Tehsil Nalagarh, District Solan, HP started in September 2007. M/s Colgate manufacture the toothpaste in their factory situated at Baddi, District Solan, Himachal Pradesh and purchase the toothbrush manufactured in Goa; M/s Colgate send the manufactured tubes of 100gm toothpaste and purchased toothbrush to the appellants for completing the packing. M/s Colgate avail the exemption contained under Notification No.50/2003 dated 10.06.2003 as amended. The appellants under the impression that they are providing "Business Auxiliary Service" to M/s Colgate have registered themselves for payment of service tax and have been duly discharging the applicable service tax on the job charges received by them from M/s Colgate. 2. The appellants informed the Assistant Commissioner of Central Excise vide letters dated 11.10.2007, 01.11.2007 and 28.01.2008 informing that the activities undertaken by them. Consequent to an investigation initiated by the Department, the appellants informed the Department that Revenue was under an erroneous assumption that the appellant was engaged in manufacture vide their letter dated 20.02.2009 and have given ....
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....Colgate, as principal manufacturers, have submitted, vide letters dated 11.10.2007; 01.11.2007 and 28.01.2008, the details required as per the said notification giving all the particulars and facts; the benefit cannot be denied just because the declaration was not on the letter head of the appellant. He relies on the decision of the Tribunal in the case of Gillette India Limited - 2011 (272) ELT 154 (Tri. Del.). He further submits that even if the appellant is required to submit the declaration, delayed submission of the same on 20.02.2009, cannot take away the substantial right available to the appellants. He relies on the following cases: Krsna Urja Projects Ltd. - 2019 (366) ELT 839 (Tri. All.) Controls & Switchgears Company Ltd. - 2017-TIOL- 1960-CESTAT-DEL. Alumeco India Extrusion Ltd. -2010 (249) ELT 577 (Tri. Bang.) Jai Maa Appliances (P) Ltd. - 2015 (329) 387 (Tri. Del.) 4.1. Learned Counsel for the appellants submits additionally that condition for furnishing a declaration is mere procedural and substantive benefit of exemption cannot be denied for the same as held by the Hon'ble Apex Court in the case of Harichand Shrigopal- 2010 (26....
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....(SC). 7. Shri Rajeev Gupta, assisted by Shri Siddharth Jaiswal, Shri Nikhil Kumar Singh and Shri Aneesh Dewan, Authorized Representatives, submits that the letters given by M/s Colgate cannot be overstretched to mean a declaration by the manufacturer in terms of the Notification No.50/2003; the letter dated 11.10.2007 gives a revised declaration intends to inform that M/s Colgate intend to manufacture combo pack consisting of colgate dental cream 200gms + Colgate dental cream 100gms manufactured at their Baddi Factory + one toothbrush to be given free of cost and that at that time, M/s Colgate did not have the facility to manufacture combo pack in their premises; M/s Colgate vide their letter dated 01.11.2007 indicated that they are sending their goods, fully manufactured and marketable, to the job workers (the appellant) and that Notification No.214/1986 is not applicable. 8. Learned Authorized Representative further submits that the appellant's reliance on M/s Man care International Private Limited is misplaced as the Tribunal has held that the benefit under the Notification No.50/2003 cannot be granted to the appellants retrospectively; the facts of the case of M/s Man car....
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....rther submits that the demand is not barred by limitation as the initial letter was filed by M/s Colgate and not by the appellants; the declaration given by the appellants on 20.02.2009 cannot have retrospective effect and the Adjudicating Authority has clearly dealt with this aspect. He further submits that the activity undertaken by the appellant amount to manufacture and as such the appellants are not covered under taxable service of "Business Auxiliary Service". He relies on the following cases: Prime Healthcare Products - 2009 (245) ELT 550 (Tri. Ahmd.) and 2011 (272) ELT 54 (Guj.)_ Colgate Palmolive (India) Ltd. - 2009 (248) ELT 930 (Tri. Bang.). Mancare International Pvt. Ltd. - 2018 (363) ELT 432 (Tri. Del.) Maha Lakshmi Packages- 2015 (329) ELT 823 (Tri. Del.) Satyabrat Swain - 2015 (316) ELT 106 (Tri. Del. Ambey Cement and anothers - 2005 (1) SCC 368 = 2004 (178) ELT 55 (SC). Dilip Kumar & Company - 2018 (361) ELT 577 (SC). Eagle Flask Industries -2004 (171) ELT 296 (SC). Gillette India - 2009 (235) ELT 5 (HP) VVF Ltd. - 2020 (372) ELT 495 (SC). 11. Heard both sides and perused th....
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....istence. We find as per Note 6 to Chapter 34 that in relation to products of this chapter, labelling or re-labelling of containers or repacking from bulk packs to retail packs or the adoption of any other treatment to render the product marketable to consumer shall amount to „manufacture‟. The appellants contend that no new marketable product emerges out of the process undertaken by them and therefore, the process does not amount to manufacture. On going through the show-cause notice, we find that the learned Commissioner records that the noticee receives 200gms toothpaste duly packed in promo pack carton which contains the following declarations: (a) Name of the manufacturer of the toothpaste, which is CPIL, Solan, Himachal Pradesh. (b) Name of the manufacturer of the toothbrush, which is M/s Logic Plastic Pvt. Ltd., Daman. (c) Total net weight of the pack i.e. 300gm with two tubes of 200gm and 100gm each. (d) Declaration that the pack contains one-piece free toothbrush. (e) Maximum retail price with the breakup of the individual retail price of 200gm and 100gm toothpaste. (f) Declaration that the toothbrush is free....
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....guish between "marketability" and the manner in which the said product is "marketed". The appellants are merely completing the process of combi pack manufactured by the principal manufacturer i.e., M/s CPIL. Therefore, we are of the considered opinion that the process undertaken by the appellants takes care of the manner in which the said product is marketed and in no case makes the goods marketable. Therefore, we hold that the process undertaken by the appellant does not amount to manufacture. 17. Revenue relies on the decisions of the Tribunal in the case of Prime Healthcare Products (supra) and M/s Colgate Palmolive India Ltd. (supra). We find that the ratio of the cases is not applicable on the facts of the cases. In both the cases, the issue involved was manufacturing of combi packs by the original manufacturers and not the job-workers and it was held that the same amounts to manufacture in that context. In the impugned case, the appellants are only inserting the 100gm toothpaste and a toothbrush into the combi pack which already contained 200gm toothpaste. The combi pack with all other ingredients including the MRP is supplied by M/s CPIL, the original manufacturers. In a ....
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....ir intimation. When the name of the manufacturer and the particulars of activity have been intimated prior to the availment of the benefit of the notification, the same can be treated as the declaration or intimation by the appellants themselves. It is not the case of the Department that the appellants are not situated in an area to which the said exemption is not available. Therefore, by undertaking the activity in the specified area, the appellants have made themselves eligible as per the substantial condition of the notification. In such circumstances, it has to be held that the declaration is only procedural. Moreover, all the details as required as per the notification have been furnished by M/s CPIL. The appellants are eligible for the exemption contained in the Notification No.50/2003 as the declaration was filed late. We find that the Tribunal in the case of Vasantham Enterprises (supra) held that: 12.5 Primary object of the Notification No. 50/2003-C.E., dated 10-6-2003 is to grant duty exemption to manufacturing units situated in the area specified therein subject to fulfilment of conditions prescribed therein read with the Board Circular No. 908/2009-CX, dated 2....
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....ed strictly, once it is found that the applicant satisfies the same, the exemption notification should be construed liberally. [See CTT v. DSM Group of Industries (S.C.C. para 26); TISCO v. State of Jharkhand (SCC paras 42 to 45); State Level Committee v. Morgardshammar India Ltd.; Novapan India Ltd. v. C.C.E. & Customs; A.P. Steel Re-Rolling Mill Ltd. v. State of Kerala and Reiz Electrocontrols (P) Ltd. v. C.C.E.]" [Emphasis supplied] 15. Apex Court in Commissioner of Customs (Preventive), Mumbai v. M. Ambalal and Company, (2011) 2 SCC 74 = 2010 (260) E.L.T. 487 (S.C.), (in which one of us was the party) has observed that the beneficial notification providing the levy of duty at a concessional rate should be given a liberal interpretation : "16. It is settled law that the notification has to be read as a whole. If any of the conditions laid down in the notification is not fulfilled, the party is not entitled to the benefit of that notification. The rule regarding exemptions is that exemptions should generally be strictly interpreted but beneficial exemptions having their purpose as encouragement or promotion of certain activities should be liberally interpreted. ....
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....folder) recorded that "In the present case, the noticee had claimed the benefit of Notification No. 50/2003-C.E., dated 10-6-2003. They have filed a declaration also. It was for them to see to it that all the conditions are fulfilled. The declaration has to be filed by giving all particulars as required in the notification which they failed to do so. It was incumbent on their part to ensure that they have fulfilled all conditions before availing benefit under the notification. The declaration was incomplete inasmuch as details were not given. This information is relevant for knowing and verifying whether the finished goods can be made out of such inputs. It thus appears that the noticee is not entitled to the benefit of Notification No. 50/2003- C.E., dated 10-6-2003." Such recording leads to the conclusion that the appellant was entitled to cure the defect providing necessary particulars for consideration of its claim of exemption under the notification above since it was primarily entitled to the area based exemption being situated in the specified area of the State of Himachal Pradesh. 19. Registration of the appellant under Finance Act, 1994 and its existence in the sp....
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....unal as above has allowed the benefit of notification on the basis of the declaration submitted by the appellants therein on 11.12.2014. We find that the above case squarely covers the issue before us and is applicable on four legs. We further find that the decision of the Tribunal has been affirmed by the Hon'ble Apex Court. In the instant case, the appellants have filed a declaration on 20.02.2009 as required by the Department. We find that thus the appellants have fulfilled the conditions of the notification making themselves eligible for availing the benefit thereof. We find support from the observation of Allahabad Bench of the Tribunal in the case of Krsna Urja Projects Ltd. wherein it is held as under: " 4. Being aggrieved, the appellants are before this Tribunal. The Learned Counsel for the appellants urges that the issue is no longer res integra and the same are decided in favour of the appellants vide the precedent orders of this Tribunal. So far the merits are concerned. A similar issue came up before this Tribunal in the case of M/s. Controls & Switchgears Company Ltd. v. Commissioner of Central Excise, Meerut-I, reported in 2017-TIOL-1960-CESTAT-Delhi. Wherein....