Home Case Index All Cases Service Tax Service Tax + AT Service Tax - 2014 (5) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2014 (5) TMI 338 - CESTAT NEW DELHIBusiness Auxiliary Service - Job work - manufacturing activity or not - packing operations in the factory premises - cleaning and testing of empty tin containers, affixing of lebels on the containers and thereafter filling up and sealing of the same - Held that:- There is no dispute about the fact that the appellant, as per their contract with M/s. Kirti Industries Limited, are engaged in the activity of vacuum cleaning of the tin containers, filling up of the same with oil and sealing and their labelling. This activity is performed by the appellant in the factory of M/s. Kirti Industries Limited. The show cause notice has been issued on the basis that the appellant’s activity is auxiliary or incidental to production of goods and hence is covered by the definition of Business Auxiliary Service taxable w.e.f. 16-5-2005 and would be liable to service tax. On perusal of the impugned order-in-original, it is seen that the appellant’s activity has been looked at in isolation ignoring the fact that it is part of manufacture of vegetable oil by solvent extraction process by M/s. Kirti Industries Limited. When M/s. Kirti Industries Limited manufacture oil by solvent process and only the job of cleaning up the tin containers, packing of oil and their sealing and labelling has been given to the appellant and this job has been performed by the appellant in the factory of M/s. Kirti Industries Limited and when in terms of Chapter Note 5 of Chapter XV, the packing from bulk to retail pack, labelling and relabelling of the goods of heading 1507 would amount to manufacture, the process undertaken by the appellant would amount to manufacture and if the process is manufacture, the same would not be service. However, we find that this aspect has not been examined either in the order-in-original or in the impugned order-in-appeal. In fact, in the impugned order-in-appeal, the Commissioner (Appeals) has observed that the services being provided by the appellant are procurement of goods or services, while the show cause notice mention the services provided by the appellant as ancillary or incidental to production of goods. In view of this, the impugned order is not sustainable. The same is set aside and matter is remanded to the original authority for de novo adjudication after hearing the appellant. - Decided in favour of assessee.
|