2018 (9) TMI 12 - AT - Central Excise

Manufacture or not - appellant is doing job-work on castings supplied by M/s.Escorts Ltd. and after doing the said activity the goods were sent back to M/s.Escorts Ltd. for further processing - The case of the Revenue is that the activity undertaken by the appellant M/s.Progressive Instruments & Machine Tools amounts to manufacture and they are not paying duty - Extended Period of Limitation. Held that - It is a fact on record that on the activity undertaken by the appellant, the appellant is discharging Service Tax and the same has been accepted by the department. In that circumstances, demand for the period September, 2007 to June, 2011 cannot be demanded from the appellant by issuance of the show cause notice dated 05.10.2012 as the activity undertaken by the appellant was known to the department - demand with Penalty set aside - appeal allowed - decided in favor of appellant.

Summary

Issues:
Demand of duty confirmed against the appellant M/s.Progressive Instruments & Machine Tools, imposition of penalties, invocation of extended period of limitation, whether the activity amounts to manufacture, liability to pay duty, acceptance of Service Tax liability by the department, sustainability of the impugned order.

Analysis:

1. Demand of Duty and Penalties:
The appellants, M/s.Progressive Instruments & Machine Tools, appealed against an order confirming duty demand and imposing penalties. The case revolved around the appellant undertaking job-work on castings supplied by M/s.Escorts Ltd., with the goods being sent back for further processing. The Revenue contended that this activity amounted to manufacture, making the appellants liable to pay duty. The show cause notice was issued invoking the extended period of limitation. The Tribunal noted that the appellants were discharging Service Tax liability for the job-work under 'business auxiliary service,' which had been accepted by the department. Consequently, the demand for the period in question was held to be barred by limitation, and the impugned order confirming duty demand and penalties was deemed unsustainable.

2. Extended Period of Limitation:
The appellant argued that since the department had accepted the Service Tax liability for the activity, the extended period of limitation should not have been invoked. The Tribunal agreed, stating that the demand for the period in question, from September 2007 to June 2011, could not be sustained as the activity was known to the department. Therefore, the entire demand was held to be time-barred, leading to the setting aside of the impugned order.

3. Activity Amounting to Manufacture:
The appellant contended that since the department had accepted the Service Tax liability, they could not demand duty by claiming that the activity amounted to manufacture. The appellant cited a previous Tribunal order in support of their argument. However, the Tribunal did not delve into the merits of whether the activity constituted manufacture, as the demand was found to be barred by limitation. Consequently, the sustainability of the demand against the appellants was not addressed, and no penalty was deemed imposable.

4. Final Decision:
After considering the submissions and facts, the Tribunal held that the demand against the appellants was not sustainable due to being time-barred. As a result, the impugned order confirming duty demand and penalties was set aside, and the appeals were allowed with consequential relief. The judgment highlighted the importance of the department's acceptance of Service Tax liability in determining the sustainability of duty demands and penalties in such cases.

This detailed analysis of the judgment provides a comprehensive understanding of the issues involved and the Tribunal's decision regarding the demand of duty, imposition of penalties, invocation of extended period of limitation, and the sustainability of the impugned order.