TMI Blog2020 (2) TMI 1450X X X X Extracts X X X X X X X X Extracts X X X X ..... riff and also in the subsequent to 2012-2016 Tariffs. Appeal allowed - decided in favor of appellant. - ST/2721/2012, ST/20887-20889 & ST/20891-20892/2014, ST/20771-20774/2016, ST/21616-21618/2018 and ST/20203-20204 & 20381/2019 - Final Order Nos. A/20221-20236/2020 - Dated:- 24-2-2020 - Shri Anil Choudhary, Member (J) and P. Anjani Kumar, Member (T) Shri Kuriyan Thomas, Advocate, for the Appellant. Shri S. Devarajan, Jt. Commissioner (AR), for the Respondent. ORDER Heard the parties. As the issue is common, the appeals are taken up together. 2. The appellant is engaged in the processing of raw fish (shrimps squid) supplied by its customers, being merchant exporters. Appeal No. ST/20887/2014 is treated as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tariff Act, 1985 and is excisable. Any process amounting to manufacture, is expressly excluded from the purview of Service Tax (BAS) under Section 65(19) of the Finance Act, 1994. Therefore there cannot be any levy of tax under the category Business Auxiliary Service , for the entire period covered by the appeals. 3.3 The raw material in the instant case is shrimp whole and the product after the manufacturing process becomes IQF Frozen cooked PUD shrimps and is understood and treated so by the trade. The documents showing the treatment of the raw material and the manufactured product in the trade parlance viz; the purchase statements, raw material evaluation report, certificate of export, commercial invoice and health certificate a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xiliary Service , is erroneous, as sale is not relevant for determining whether there is manufacture or for subjecting to duty of excise. 3.7 In Appeal Nos. ST/20203/2019, 2024/2019, 21616/2018, 21617/2018, 21618/2018 and 20381/2019, reference is made by the Appellate Commissioner to the decision of the Hon ble Supreme Court in Sterling Foods v. State of Karnataka, 1986 (26) E.L.T. 3 (S.C.), to hold that there is no manufacture while processing of frozen shrimps, prawns and lobsters. The reliance placed on the decision of the Hon ble Supreme Court in Sterling Foods case is wholly misplaced. The said decision was rendered in the context of the Karnataka Sales Tax Act, where there is no definition of the term manufacture. In the case of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal Order No. 20099-20102/2020, dated 11-2-2020 has held in Paras 6.1 6.2 as under : 6.1 After considering the submissions of both the sides and perusal of the material on record, we find that the only issue to be decided in the present set of appeals is whether the activity of the appellant can be termed as taxable service under the provisions of Finance Act, 1994 as Business Auxiliary Service or the activity can be called as a manufacture as defined under the provisions of Central Excise Act, 1944. Further we find that it is not in dispute that the appellant is processing marine products on behalf of their clients and all the processes carried out by the appellant have been informed to the Department by the appellant vide its lette ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orrugated cartons, strapped and stored in the frozen storage maintaining at minus 18 degree Celsius. When sufficient cargo is ready, this will be shipped to the overseas buyers by M/s. SLS Exports. So, after the various stages of processing of the raw materials received a commercially distinct product is obtained with a brand image and acceptable to any overseas buyers. Thus, the raw materials received are converted to a value added product, and manufacturing activities are taken place in the course of its exports. We would also point out that Ministry of Food Processing Industries, Govt. of India, has included sea food processing unit as manufacturing units under Meat Product (Amendment) Order, 2005. As such, we would like to submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Chapter Note 3 of the said Chapter 16 which is extracted below :- In relation to the products of this Chapter, labelling or relabelling of containers or repacking from bulk packs to retail packs or the adoption of any other treatment to render the product marketable to the consumer, shall amount to manufacture . 6.2 It is not in dispute that the processes undertaken by the appellant on the marine products are intended to render such products marketable to consumers. Therefore the appellant s activity falls under the definition of manufacture and not as taxable service falling under BAS. Both the authorities have not properly appreciated the processes explained by the appellant vis-a-vis the Chapter Note 3 of Chapter 16 CETA, 1985 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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