2023 (12) TMI 123 - AT - Service Tax

Process amounting to manufacture or not - processes of flaking/grinding of used PET bottles and washing of flakes. Revenue was of the opinion that the process amounting to manufacture and were subjected to nil rate of duty and the finished products were subjected to nil rate of duty as per Notification No.24/2012-CE dated 08.05.2012. HELD THAT - The only ground which is raised by the revenue to counter the findings recorded by the Commissioner in the impugned order is that Polyester staple fiber/polyester Staple yarn was attract nil rate of duty as per exemption Notification No.24/2012-CE dated 08.05.2012. The proviso (2) of the said notification specifically provides that appropriate rate of duty would not include nil rate of duty or duty which is exempted for the purpose of the said notification. The benefit of this Notification No.8/2005 would not be admissible to respondent. As the finished product of M/s Reliance Industries was Polyester staple fiber or polyester staple yarn subjected to nil rate of duty as per Notification No.24/2012. However, it is found that at no stage of investigation nor even at the filing of this appeal any evidence has been produced by the revenue to show that Reliance was clearing the finished products i.e. Polyester staple fiber or polyester filament yarn by availing the benefit of the notification. In absence of any evidence to this effect, the conclusion drawn in the appeal filed by the revenue cannot be substantiated. The Polyester staple fibre or polyester filament yarn manufactured from plastic scrap or plastic waste including waste polyethylene terephthalate bottles was throughout exempted from payment of duty or attracted nil rate of duty. There could not have been any reason for limiting the applicability of Notification No 8/2005-ST dated 01.03.2005 from the 08.05.2012 the date of Notification No 24/2012-CE amending notification No 17/2012-CE dated 01.03.2012. Revenue has in its appeal restricted the demand of service tax from 08.05.2012. Further in its circular dated 29.06.2010, Board has in para 8 clarified multifarious uses of Polyester Staple Fibre etc. No evidence has been produced by the revenue in the appeal or at any stage of the proceedings to show that the finished goods of the M/s Reliance Industries Limited were cleared under exemption. The exemption contained in the notification No 8/2005-ST which was rescinded by the Notification No 34/2012-ST extended by the entry at Sl No 30 of the Notification No 25/2012-ST. The entries made in the two notifications are in respect of the same activities. The contention of revenue in appeal with regards to non admissibility of the exemption under these notifications is supported by any evidence, to show that M/s Reliance Industries Limited was clearing the Polyester Staple Fibre by availing the exemption under the Notifications referred in the appeal. In fact it is not even shown that M/s Reliance was clearing Polyester Staple Fibre or was clearing the product referred in para 8 of the board circular of 2010 on payment of appropriate duty. There are no merits in the appeal filed by the revenue. Appeal is dismissed.

Summary

Issues Involved:

1. Whether the process of flaking/grinding of used PET bottles amounts to manufacture under Section 2(f) of the Central Excise Act.
2. Eligibility for exemption under Notification No. 8/2005-ST dated 01.03.2005.
3. Applicability of Service Tax under Business Auxiliary Services.
4. Validity of the demand for Service Tax, penalties, and interest.

Summary of Judgment:

1. Process of Flaking/Grinding as Manufacture:

The Commissioner concluded that the process of converting waste PET bottles into PET flakes does not amount to manufacture as it does not result in a new distinct and identifiable product. Consequently, the respondent is entitled to the benefit of exemption from Service Tax under Notification No. 8/2005-ST dated 01.03.2005, and the demand of Rs 52,46,844.00 is liable to be dropped as non-sustainable in law.

2. Eligibility for Exemption under Notification No. 8/2005-ST:

The Revenue argued that the exemption under Notification No. 8/2005-ST is not applicable as the final product, Polyester staple fiber, was subject to a nil rate of duty as per Notification No. 24/2012-CE dated 08.05.2012. However, the Tribunal found no evidence from the Revenue to show that Reliance Industries Ltd. cleared the finished products by availing the benefit of the notification. Therefore, the Tribunal upheld the Commissioner's decision to extend the benefit of the exemption to the respondent.

3. Applicability of Service Tax under Business Auxiliary Services:

The Commissioner held that if the process does not amount to manufacture, the respondent's activities fall under Business Auxiliary Services but are exempt under Notification No. 8/2005-ST. The Revenue's appeal only contested the exemption post 08.05.2012, but the Tribunal found that the exemption was valid throughout the period in question, including after the issuance of Notification No. 24/2012-CE.

4. Validity of the Demand for Service Tax, Penalties, and Interest:

The Tribunal noted that the Revenue did not provide evidence showing that Reliance Industries Ltd. cleared the final products under the exemption. The Tribunal also referenced previous decisions and circulars supporting the exemption of Polyester staple fiber from duty. Consequently, the Tribunal dismissed the Revenue's appeal, finding no merit in the demand for Service Tax, penalties, and interest.

Conclusion:

The Tribunal upheld the Commissioner's decision, concluding that the respondent's process does not amount to manufacture and is eligible for exemption under Notification No. 8/2005-ST. The Revenue's appeal was dismissed due to a lack of evidence supporting their claims.