2010 (6) TMI 341 - AT - Service Tax

Business Auxiliary Service- The assessees challenge the demand of service tax of Rs.37,637/- together with interest and penalties imposed under Sections 76 & 78 of the Central Excise Act, 1944. The demand is on certain activities such as processing and assembling Jeans Buttons with metal inserts and nylon inserts, and processing Needle Threader, on the ground that the processes do not amount to manufacture so as to be excluded from the levy of service tax. Commissioner (Appeals) reduced the penalty. Held that- in view of clear language of Section 80 of the Finance Act, 1994, the assessees are correct in contending that once the shelter under Section 80 has been extended by the Commissioner (Appeals) and this part of the order has not been challenged by the Revenue, no penalty could have been retained. Therefore, set aside the penalties as reduced by the Commissioner (Appeals).

Summary

Issues:
Challenge of service tax demand on activities like processing Jeans Buttons and Needle Threader, applicability of "manufacture" exclusion, duty liability from a specific date, penalty imposition under Sections 76 & 78, extension of benefit under Section 80, re-quantification of service tax demand post specific date.

Analysis:
The judgment dealt with the challenge by the assessees against a service tax demand of Rs. 37,637/-, along with interest and penalties, imposed under Sections 76 & 78 of the Central Excise Act, 1944 (Finance Act, 1994). The dispute arose regarding certain activities involving processing Jeans Buttons with metal and nylon inserts, and Needle Threader. The assessees contended that the processes did not amount to "manufacture," thus excluding them from service tax levy.

The assessees initially argued that the processes constituted "manufacture" and did not fall under "Business Auxiliary Service." However, they later shifted their stance, claiming that even if the processes were not considered as "manufacture" and were categorized under "Business Auxiliary Service," the duty liability should only apply from 16-6-2005. Additionally, they argued that since the Commissioner (Appeals) acknowledged a reasonable cause for failure to pay service tax and extended the benefit under Section 80, no penalty should be imposed.

The Tribunal acknowledged the assessees' argument that the liability for service tax should commence only from 16-6-2005, as the definition of "Business Auxiliary Service" did not include processing of goods before that date. Citing a previous case, the Tribunal supported this view. Regarding penalties, the Tribunal concurred that if the benefit under Section 80 had been granted by the Commissioner (Appeals) and not contested by the Revenue, no penalty should be upheld. Consequently, the penalties imposed were set aside, and the service tax demand was directed to be recalculated post-16-6-2005 by the adjudicating authority.

In conclusion, the appeal was partly allowed, penalties were annulled, and a re-quantification of the service tax demand post a specific date was mandated. An additional ground raised in a Misc application, asserting no demand could be sustained pre-16-6-2005, was accepted based on the Tribunal's precedent.

For further details, refer to the full judgment at: [Link to the judgment](http://www.taxmanagementindia.com/visitor/detail_case_laws.asp?ID=77276)