2009 (7) TMI 1089 - Commissioner - Service Tax

Summary

Issues Involved:
1. Classification of the appellant's activity as 'manufacturing' or 'repair and maintenance' service.
2. Applicability of Service tax on exported re-shelled sugar mill rollers.
3. Time bar and limitation for issuing the Show Cause Notice (SCN).
4. Imposition of double penalty under Section 78 and penalty under Section 76 of the Finance Act, 1994.

Issue-wise Analysis:

1. Classification of the appellant's activity:
The appellant contended that their activity involved mounting shells on bare shafts, which constituted manufacturing a new sugar mill roller. They referenced the Punjab & Haryana High Court's decision in the case of Saraswati Industrial Syndicate, which distinguished between reshelling (repairing) and manufacturing new rollers. The lower authority, however, classified the activity as 'repair and maintenance' service based on the description in purchase orders (POs) and invoices. The appellant argued that the description in POs was incorrect and that their activity should be considered manufacturing, as they received bare shafts and created new rollers.

2. Applicability of Service tax on exported re-shelled sugar mill rollers:
The appellant claimed that their activity was manufacturing and thus not subject to Service tax under 'repair and maintenance' service. They argued that they exported the new rollers under bond without payment of duty, and the Department had previously allowed this classification for domestic clearances. The lower authority held that the activity was taxable since it was performed in India and paid for in Indian currency. The appellant provided evidence, including Bills of Entry and POs, to support their claim of receiving bare shafts and manufacturing new rollers.

3. Time bar and limitation for issuing the SCN:
The appellant argued that the SCN issued on 31-7-2007 was time-barred as the Department had acquired knowledge of their activity on 24-11-2004. They cited the Supreme Court's decision in Kushal Fabricators Pvt. Ltd., which held that suppression stops once the Department is informed, and only the normal period for issuing an SCN is applicable. The appellant had responded to the Department's queries in 2004 and 2005, making the SCN issued in 2007 beyond the permissible period.

4. Imposition of double penalty under Section 78 and penalty under Section 76:
The appellant contended that the lower authority imposed double penalties without providing reasons. They argued there was no suppression of facts as they had imported bare shafts under Bills of Entry, conducted manufacturing, and duly entered the products in the RG1 register. They had also been filing ER 1 returns regularly. The absence of suppression or intent to evade tax made the imposition of penalties unjustified.

Conclusion:
The appellate authority found that the appellant's activity constituted manufacturing, not 'repair and maintenance' service, based on the evidence provided. The demand for Service tax was thus not sustainable. Additionally, the SCN was deemed time-barred, and the imposition of penalties was found to be without basis. The appeal was allowed, and the impugned order was set aside.