TaxTMI 
TaxTMI 
2024 (12) TMI 842
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....als against imposition of penalties only to the tune of Rs.10,000/- each under Section 77 (1) of the Finance Act, 1994. 2. The facts of the case are that M/s Emami Limited is engaged inter-alia in the manufacture and clearance of ayurvedic and cosmetic items as finished goods falling under Chapter 30 and 33 of the Central Excise Tariff Act, 1985 from its manufacturing facility located in EPIP Complex, Amingaon, Assam. The Appellant operated under the erstwhile Cenvat Credit Scheme and had been discharging its excise duty liability on the finished good cleared from its factory premises in retail packs, in accordance with Section 4A of the Central Excise Act, 1944. It may be noted, that by virtue of Chapter note 6 and 5 of Chapter 30 and Chapter 33 respectively as also in terms of the definition of manufacture as contained in Section 2(f) of the Act, the activity of packaging of finished goods from bulk to retail packs amounts to "manufacture". 2.1 During the relevant period, the Appellant had awarded Job contracts/work orders to interalia the following contractors for carrying out the activity of packaging of its bulk goods into retail packs within the factory premises, in terms ....
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....onthly production plan was shared with the contractors at the beginning of every month. The bulk finished goods along with the packing material was made available to the contractors for the conversion of the same into retail packs. Thereafter, finished goods packed throughout the day was duly verified by the Appellant and was entered in the packing register which was counter-signed by both the parties i.e., the Appellant and the contractors. At the end of each month, job work invoices were raised by the Contractors based on the quantity packed at the pre-agreed rates and were submitted with the Appellant along with the Annexure containing details of item-wise packing activities undertaken during the month. Any wastage was deducted from the value of the invoice and payment was made to the contractors after making the statutory deductions. No service tax was discharged by the contractors and/or the Appellant on these contracts. 2.3 Acting upon intelligence, proceedings were initiated vide search conducted at the premises of Contractor No.1, with the aim of establishing that the manpower supply services were mis-declared as job-work contract. Statements of all 3 contractors and the....
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....ority in accordance with the provisions of Section 9D of the Central Excise Act, 1944, which is equally applicable to service tax demands in view of Section 83 of the Finance Act, 1994. However, in the instant case the prescribed procedure has not been followed and as such the statements of the contractors have no evidentiary value. Reliance in this regard is being placed on the judgement of the Hon'ble CESTAT, Kolkata in the case of Ms. Narsingh Ispat Limited Vs. Commissioner of CGST and Central Excise [2024 (3) TMI 1037] as also in the case of Ms. Prinik Steels (P) Ltd. Vs. Commissioner of C. Ex., Cus., ST [2023 (12) TMI 299]. 1.2. There has been pick and choose of statements in order to suit the case of the Revenue, which is not permitted by mixing two different contracting periods of Contractor No.2 1.3. The statements of Contractor No. 1 are full of contradictions and inconsistencies and as such the same cannot be relied upon [Refer - Commissioner of C. Ex., Gurgaon Vs. Reliant Packing Films - 2009 (248) E.L.T. 169 (PH)]. 1.4. Contractor No. 1 and Contractor No.3 were coerced to give statements on dotted lines which were subsequently retracted. It is a settled princip....
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....se/Labour License cannot be determinative of the nature of the arrangement and the legal effect thereof as the engagement was not on an exclusive basis. If the license was to be the basis, then demand with respect to Contractor No. 1 (Description in the license - "Packing, Unloading and Material Transportation) and Contractor No.2 (Description in the license - "Manufacturing of Cosmetic Production") cannot be proceeded with on this limited ground alone 3.1 He further submitted that the conclusions drawn in the impugned order, are based on a mis-appreciation of the evidence and contrary to the facts on record as elaborated herein above and the observation made in the impugned order to purportedly conclude that the appellant was involved in receiving manpower supply services are clearly unsustainable. 3.2 It is his further submission that the observations of the Ld. Adjudicating Authority in the impugned order have been made without proper appreciation of the facts and evidence. The observations of the Ld. Adjudicating Authority along with the rebuttals of the Appellant have been summarised in the table hereunder: Sl. No. Observations of the Ld. Adjudicating Authority ....
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....ntioned in their Wage calculation sheet since packing has to be done of a particular product only. 2.4 Moreover, Contractor No.2 in this statement dt. 23.09.2019 in Question No. 5 on being asked "Do you work on raw material in bulk supplied by M/s. Emami Ltd. or otherwise" had clearly stated that "We were involved in packing and converting the bulk quantity into smaller packs". 3 That the onus of damage/loss of raw material or finished goods was on the Appellant and not the contractors; 3.1 Damages and loss of packing material/finished goods beyond the mutually agreed limits was to the account of the Contractors as evidence from clause 6 & 12 of the work orders/job contracts. Contractor No.2 has categorically deposed in the affirmative in his Statement dated 23 September 2019 in response to Q. No. 13 & 14. Further, the invoices showing recovery of damage/high wastage from Contractor No. 1 has also been enclosed as Exhibit N. 4. That neither the Appellant nor the contractors maintained any packaging register; 4.1 Clause 3 of the work order/job agreement required maintenance of a packaging register. The Statement of Contractor No.2 itself acknowledges that the pa....
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....t of the charging section 66B of the Finance Act. 3.5 It is also submitted by the ld.Counsel that the Tribunal has taken a consistent view that the packing activity undertaken by contractors at the premises of the principal amounts to manufacture and as such the same shall be covered under the negative list of services in terms of Section 66D(f) of the Finance Act, 1994. Reliance in this regard is being placed on the following judgements of the Tribunal: (i) Commissioner of Service Tax - II, Kolkata Vs. Anmol Biscuits Limited - 2022 (62) G.S.T.L. 171 (Tri.- Kolkata) (ii) Ms. Suresh Contracts Vs. Commissioner of Central Excise & ST, Salem - 2023 (5) TMI 393 (Tri.- Chennai). (iii) Ms.Fire Controls Vs. Commissioner of Central Excise, Customs and Service Tax, Mysore - 2019 (8) TMI 1028 (Tri. Bang.) (iv) Divya Enterprises Vs. Commissioner of Central Excise, Mangalore - 2010 (19) S.T.R. 370 (Tri. - Bang.) (v) Shivshakti Enterprises Vs. Commissioner of Central Excise, Pune - 2016 (41) S.T.R. 648 (Tri.- Mumbai) 3.6 He further contended that it would be pertinent to note that with respect to another contractor, M/s. Lucky Enterprise, engage....
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.... terms of appointment] 3 The job worker may undertake job in his premises or in the premises of the service provider In the present case, the contractor no. 1, 2 and 3 carried out the work in the premises of the Appellant. Additionally, the contractor no. 1 also undertook job work at his own premises. 4 The value of service is payable on per piece basis depending upon item and style The contractors raised their bills on per piece basis for the quantity of finished goods packed during the respective months as evident from the tax invoice and packing register, countersigned by both the parties. 5 Service provider is liable to compensate the service recipient if the work is not as per the standard norm Any loss or damage arising during production/packing activity above the mutually agreed limited was borne by the contractors in terms of the agreement. The value of the loss/damage was deducted from the invoices raised by the contractors. The same has also been admitted by Contractor No. 2 in his statements. 6 In case the work is executed by the service provider at the cite of the service recipient, the service provider would indemnify the service receiv....
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....ion but proprietorship/partnership concern, not highly educated and not well aware of such clarifications to comprehend and depose with precision, the difference between the said two activities and the legal effect thereof. It is a settled principle in law that extended period of limitation is not invocable when the issue involves interpretation of law. Reliance in this regard is being placed on the judgement of the Hon'ble Supreme Court in the case of International Merchandising Co, LLC Vs. CST, New Delhi - 2022 (67) GSTL 129 (SC). 3.13 He further submitted that the contractors were not required to obtain service tax registration under Section 69 of the Finance Act, 1994 as the activity undertaken by them amounted to manufacture and as such penalty cannot be imposed on them. 3.14 In terms of the above, it is evident that the activity undertaken by the contractors amounted to manufacture and the same was covered under the negative list of services. Therefore, service tax was not leviable on the said activity. When there is no service tax liability, the question of service tax registration does not arise. In this regard, attention is drawn towards the relevant portion of Secti....
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.... of the packaging register and rejections being to the account of the contractor. Moreover, in the instant case we are not concerned with an exemption notification but with the entry in the negative list, which had not fallen for consideration before the Hon'ble Supreme Court. He therefore, prays for allowing their appeals by setting aside the impugned order. 4. The ld.A.R. for the Revenue has justified the impugned order. 5. Heard both the parties and considered the submissions and perused the records. 6. The sole issue for consideration before us is that whether the appellant or the job workers are liable to pay service tax on the activity of packing of its bulk pack into retail pack or not ? 7. Admittedly, the item which is manufactured falling under Chapter 30 and 33 of the Central Excise Tariff Act, 1985. The Chapter Note 6 & 5 of Chapter 30 and 33 respectively defines the "manufacture" as contained in Section 2 (f) of the Act that the activity of packaging of finished goods from bulk to retail packs amounts to "manufacture". Therefore, the activity of packing of its bulk into retail pack, amounts to manufacture. Therefore, no service tax is payable by the other ap....