TMI Blog2009 (9) TMI 745X X X X Extracts X X X X X X X X Extracts X X X X ..... Auxiliary Service (hereinafter referred as BAS) during the period from 10-9-2004 to 31-12-2004 and accordingly he was directed to show cause as to why the Service tax amount of Rs. 10,19,761/- which includes education cess also should not be recovered under Section 8 of the Finance Act 1994 (hereinafter referred as the Act) , interest under Section 75 should not be charged and penalty under Sections 70, 77 and 78 should not be imposed; that on adjudication, the demand raised in the SCN-cum-Demand Notice was confirmed along with interest, in addition to imposing penalty under sections 70 and 77 and equal penalty under Section 78 of the Act holding that the appellant s activity of Heat Treatment (job work) would come under clause (v) i.e. p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the definition of BAS prior to Budget 2005; (v) that the penalty was imposed without authority of law, in as much as the case of the appellant is totally covered under Section 73(3) of the Act which prevents or prohibits the penal action against the appellant. 3. PH was held on 7-9-2009 at 02.30 PM. Shri B. R. Kulkarni, Power of attorney of the appellant company, appeared before me at 02.30 PM. None appeared from department s side despite intimation. During the hearing, he has submitted that the issue involved in the appeal is non payment of service tax under Business Auxiliary Service (BAS in short) during the period covering from 10-9-2004 to 31-12-2004. In this regard, he has submitted that his client is not liable to pay service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder 57F (4) challans and after undertaking the Heat Treatment, the same are returned to the customers, who have sent the raw materials for Heat Treatment and after undertaking further process by the raw material suppliers, final products are cleared on payment of Central Excise duty; that to support his contention, the appellant has also produced Chartered Engineer s Certificate dated 22-7-2005 supra, wherein it has been certified that the Heat Treatment is a process incidental or ancillary to the completion of a manufacturing product. During the hearing, the consultant, who appeared on behalf of the appellant, has undertaken to produce the copies of the invoices of the raw materials suppliers/original suppliers evidencing payment of Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Excise duty. In other words, the Central Excise duty has been paid on the job charges also paid to the job workers. Presuming that in the instant case, the Service tax is charged on the job worker under BAS, there will be a situation that the job charges would suffer duty/tax twice - first at the hands of job worker as Service tax under BAS and the second time at the hands of the original supplier as Central Excise duty. That is the reason, the Central Government has issued Notification No. 8/2005 S.T., dated 1-3-2005 which exempts goods produced or processed using the raw materials or semi- finished goods supplied by his clients (raw material supplier) and the goods so produced, or processed are returned back to the said supplier for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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