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TMI Blog2009 (11) TMI 356X X X X Extracts X X X X X X X X Extracts X X X X ..... ealed against. Thus the contra view presently taken set aside and assessee’s appeal allowed. - ST/75/2008 - A/281/2009-WZB/C-II/CSTB - Dated:- 19-11-2009 - S/Shri P.C. Chacko, Member (J) and B.S.V. Murthy, Member (T) REPRESENTED BY: Shri J.C. Patel, Advocate, for the Appellant. Shri H.B. Negi, SDR, for the Respondent. [Order per P.G. Chacko, Member (J)]. - This appeal filed by the assessee is against the order of the learned Commissioner, whereby Service tax of over Rs 1.5 crores along with education cess was demanded for the period 10-9-2004 to 30-9-2006 in respect of what was held to be 'business auxiliary service'. This case is being taken up in terms of the Hon'ble High Court's directions contained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is legal position is squarely covered by the Board's Circular dated 27-10-2008 issued from F. No.249/1/2006- CX.4. It is also pointed out that, in view of the said circular of the Board, the learned Commissioner (Appeals), Aurangabad held in favour of the assessee Order-in-Appeal No. JAK (51)215/09 dated 26-2-09. Learned counsel has produced a copy of the Appellate Commissioner's order. 3. According to learned SDR, the aforesaid activity would remain within the ambit of business auxiliary service because, according to him, for job work to be kept out of the purview of the said service, the product should excisable. It is submitted that the products in question were not exigible to Central Excise duty and, therefore, the above a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o duty of excise. Therefore, 'manufacture' and 'excisable goods' are two independent concepts and that it is not necessary that a process amounting to manufacture within the meaning of Section 2(f) should always result in emergence of an excisable goods and vice versa. Whether a process would amount to manufacture within the meaning of Section 2(f) has to be seen independently, based on the criteria evolved through various judgments of the apex court. There may be a case, when a process may amount to manufacture under Section 2(f) but it may not result in emergence of an excisable product. If that be so, then the exclusion clause under BAS, which refers only to the activity amounting to manufacture within the meaning of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... man consumption, it cannot be said that the term 'manufacture' used in Business Auxiliary Service would also not cover the process of making the said product, namely alcoholic beverages. 3.3 In view of the foregoing, it was decided that if the CBU undertakes complete process of manufacture of alcoholic beverage under the 'contract bottling arrangement' as described above then such activity would not fall under the taxable service, namely the BAS. However, in case the activity undertaken by the CBU falls short of the definition of manufacture (such as activity of 'packing' or 'labelling' alone) then such activity would fall within its ambit and would be charged to Service tax. 5. The learned Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X
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