TaxTMI 
TaxTMI 
2025 (1) TMI 1444
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....nt for having agreed not to produce or utilize their fixed assets like plant and machinery for manufacture of the products of any other parties/clients. The department is of the view that for such Act of refraining from utilizing the fixed plant and machinery for manufacture of goods for other parties, the activity of the appellant falls under the purview of "service" as per the provisions of clause ( e ) of Section 66 E of the Finance Act, 1994 being a declared service. On this very premise the department had issued a show cause notice dated 22.05.2014 demanding a service tax of Rs.7,87,462/- under proviso to the Section 73(1) of the Finance Act, 1994. The provisions pertaining to charging of interest as per the provisions of Section 75 and provisions of the penalty as per Section 77 and 78 of the Finance Act, 1994 were also invoked. The matter has been adjudicated by Learned Assistant Commissioner vide impugned order-in-original dated 18.04.2017, whereunder, all the charges has invoked in the show cause notice has been dropped. The department has challenged the order-in-original of the Assistant Commissioner before Learned Commissioner (Appeal). The Learned Commissioner (Appeal) ....
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.... of the principal manufacturer is preserved Hence, these two distinct activities are neither in the nature of main or input service, nor is there any dispute in relation to the description of the services, nor are they bundled services. The charges recovered by the respondents are arrived at differently and are even recovered differently for these distinct activities. Accordingly, when there is no dispute in relation to the classification of the services involved, the invoking of provisions of Section 66 F ibid is not warranted in the matter. The kind of dominant nature emphasized by the respondents is not the criterion in terms of Section 66 F ibid and even otherwise, when two distinct activities taxable differently without any ambiguity against their respective considerations are involved, such a plea to resort to the provisions of Section 66 F ibid is extraneous to the issue on hand." 3. I find that Learned Commissioner (Appeal) while adjudicating the matter has not considered various legal pronouncements on this issue. We also find that matter is no longer res-integra, as the matter has already been decided by this Tribunal in case of the appellant in case of Commissioner of C....
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....nufacturing charges i.e. primarily for the purpose of keeping the confidentiality of the formulation of the M/s. Syngenta India Limited and same cannot be considered separately from the job work agreement. We also find that the department has not been able to establish that fixed charges have been paid to the respondent-assessee as an independent of all the manufacturing activity. We also think that amount of fixed cost of Rs. 16 Lacs was paid not only for maintaining strict confidentiality of propriety of the formulation of M/s. Syngenta India Limited but also for the plant and machinery which may remain unutilized during the process of undertaking job work pertaining only for M/s. Syngenta India Limited. In view of all these facts, we hold that the fixed cost which are being paid to the respondent-assessee do not fall under Declared Service category as mentioned under Section 66E(e) and the amount which is paid to the respondent-assessee is primarily for manufacturing cost undertaken by them on job work basis. 5. It is an accepted legal position that the agreement has to be considered in its entirety for the purpose of levy of service tax since the agreement is primarily for un....
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....ct, 1994, under the head SOTG. The Board vide letter dated 10-11-2014 have clarified that such facility charges form part of transaction value for the purpose of Central Excise duty. Accordingly, this Tribunal set aside the order and allowed the appeal of BOC India Limited. (b) Jubilant Industries Limited vs. CCE, Ghaziabad - 2013 (31) STR 181 (Tri. Del.) 13. We are in agreement with the contention that the same activity cannot be considered as manufacturing and subjected to excise levy and at the same time considered to be a service and subjected to service tax. This principle does not need much discussion and is also recognized under Section 65(19) of Finance Act, 1994 levying service tax on processing of goods not amounting to manufacture. Process amounting to manufacture is kept specifically out of the scope of the entry. That being the case such an activity cannot be brought under service tax levy under "Business Support Service" because the underlying principle will apply to this entry also. The specific exclusion is not seen under 64(104c) for the reason that the legislature intended to deal with the issue under Section 65(19). We find that Revenue is also not disputing ....
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.... Section or Chapter notes of the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) as amounting to manufacture; or which, in relation to the goods specified in the Third Schedule, involves packing or repacking of such goods in a unit container or labelling or re-labelling of containers including the declaration or alteration of retail sale price on it or adoption of any other treatment on the goods to render the product marketable to the consumer; and the word "manufacturer" shall be construed accordingly and shall include not only a person who employs hired labour in the production or manufacture of excisable goods, but also any person who engages in their production or manufacture on his own account; 17. Therefore if either party was to apply for registration as a manufacturer the department would have accepted the application. Excise registration is only to the effect that one of the parties undertakes to discharge the excise duty liability on the goods manufactured. This cannot be interpreted to mean that the activity done by the other party is not manufacturing activity. Notification 214/86-C.E. only provides a mechanism by which the duty liability is fixe....