2015 (1) TMI 643 - AT - Service Tax

Waiver of pre-deposit - Business Auxiliary Service - Held that - On examination of the agreement of amalgamation we find that as per Clause 2 of the scheme the amalgamation shall be effective from the appointed date which means although the proceedings may take place for amalgamation later on, but it shall be effective on 01.04.2010. Prima facie we are convinced with the argument of the ld. counsel that the applicant is manufacturing goods for themselves. Therefore, they cannot provide service to themselves. Accordingly, service tax demand is not sustainable under the category of Business Auxiliary Service. We further find that as per Clarification in CBEC circular on 27.10.2008 that the definition of manufacture has to be considered while demand service tax under Business Auxiliary Service. It is no doubt the goods produced by the applicant covers under the definition of Section 2(f) of Central Excise Act, 1944. In fact, Section 2(f) of the Central Excise Act, 1944, at the relevant time, talks about goods and not excisable goods. Therefore, the definition of Section 2(f) is squarely applicable to the facts of this case, therefore, the applicant activity does not falls under the category of Business Auxiliary Service prior to 01.04.2010 also. In these circumstances, the applicant has made out a case for complete waiver of pre-deposit. Accordingly, we waive the pre-deposit of entire amount of service tax, interest and penalties and stay recovery thereof during the pendency of the appeal. - Stay granted.

Summary

Issues:
Waiver of pre-deposit of demand under the Finance Act, 1994 for manufacturing activities on job work basis, amalgamation agreement with another company affecting liability for service tax under Business Auxiliary Service, applicability of Central Excise Act, 1944 definitions to determine service tax liability.

Analysis:
The judgment concerns the applicant seeking waiver of pre-deposit of a substantial demand of &8377; 21,92,03,724/- along with interest and penalties under the Finance Act, 1994. The applicant was engaged in manufacturing beer on a job work basis for another company and entered into an amalgamation agreement with that company, transferring assets and liabilities. The Revenue contended that the applicant was producing goods on behalf of the other company, falling under Business Auxiliary Service, and issued a show-cause notice leading to confirmed demands.

The applicant argued that post the effective date of amalgamation, they were producing goods for themselves and not on behalf of a third party, thus not liable for service tax under Business Auxiliary Service. They also claimed exemption from service tax prior to the effective date based on their manufacturing activity falling under the Central Excise Act, 1944 definitions. The Revenue opposed these arguments, asserting a different effective date for the amalgamation and the non-applicability of the Central Excise Act, 1944 definitions to the case.

After hearing both sides, the Tribunal examined the amalgamation agreement and found that the effective date was indeed 01.04.2010, meaning the applicant was manufacturing goods for themselves post that date. The Tribunal agreed with the applicant's counsel that the applicant cannot provide service to themselves, thus the service tax demand under Business Auxiliary Service was not sustainable. Additionally, the Tribunal noted that the goods produced by the applicant fell under the definition of Section 2(f) of the Central Excise Act, 1944, even prior to 01.04.2010, further supporting the waiver of pre-deposit. Consequently, the Tribunal granted a complete waiver of the pre-deposit of the entire amount of service tax, interest, and penalties, staying the recovery during the pendency of the appeal.

This judgment clarifies the importance of effective dates in agreements, the applicability of definitions under relevant statutes to determine tax liabilities, and the significance of demonstrating manufacturing activities for oneself to avoid certain tax obligations.