2013 (9) TMI 511 - AT - Service Tax

Service tax demand packaging services section 65(76B) appellant provided packaging activity services in relation to fertilizer manufactured Held that - The activity of packaging undertaken in respect of fertilizer would form an integral part of the manufacturing activity and cannot be viewed as a service activity especially in the context of the packaging activity which excludes form its scope any activity of manufacture as defined in Section 2 (f) of the Central Excise Act, 1944 - fertilizer cannot be marketed without packaging, in the manner specified - packaging of fertilizer is a statutory requirement - marketing of fertilizer cannot be take place without packaging. Pre- deposit of duty court granted unconditional waiver from pre-deposit of dues - stay granted.

Summary

Issues:
1. Whether the packaging activity undertaken by the appellant falls under the purview of packaging services as defined in the Finance Act, 1994.
2. Whether packaging of fertilizer is an integral part of the manufacturing activity.
3. Whether the appellant is liable to pay service tax for the packaging activity.

Analysis:

Issue 1:
The appeal and stay application were directed against an order demanding service tax for packaging services provided by the appellant. The department claimed the activity falls under packaging services as per the Finance Act, 1994. The appellant argued that packaging of fertilizer is a statutory requirement under the Fertiliser (Control) Order, 1985, without which marketing cannot occur. The appellant contended that packaging is integral to the manufacturing process, citing relevant legal precedents. The Tribunal agreed with the appellant, stating that packaging is essential for marketing and completion of the manufacturing process, thus excluding it from service activity defined in the Finance Act, 1994.

Issue 2:
The Commissioner argued that the manufacture of fertilizer is complete before packaging, and packaging does not alter the nature of the product. However, the Tribunal noted that as per the Fertiliser (Control) Order, 1985, packaging is a mandatory step for marketing fertilizer. The Tribunal held that under the Central Excise Act, 1944, manufacturing includes processes incidental to product completion. Without packaging, fertilizer cannot be marketed, making packaging an integral part of the manufacturing activity. The Tribunal found merit in the appellant's argument that packaging is crucial for completing the manufacturing process.

Issue 3:
The appellant was contesting the demand for service tax on the packaging activity. The Tribunal, after considering the submissions, granted unconditional waiver from pre-deposit of the dues adjudged in the impugned order and stayed the recovery during the appeal's pendency. The Tribunal found that the appellant had a strong case against the imposition of service tax for the packaging activity, based on the statutory requirements and the integral nature of packaging in the manufacturing process.

In conclusion, the Tribunal ruled in favor of the appellant, granting a waiver from pre-deposit of the demanded dues and staying the recovery during the appeal process. The judgment highlighted the significance of packaging in the manufacturing process and its exclusion from the scope of service activity as defined in the relevant legal provisions.