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TMI Blog2021 (9) TMI 1269X X X X Extracts X X X X X X X X Extracts X X X X ..... one invoice represents the fixed charges and referred as 1st Invoice and second invoice relates to variable cost, referred as 2nd Invoice . The Variable Charges consist of Power, Fuel, Man power, consumables and are subject to review on quarterly basis, whereas for fixed charges, no such bifurcation were given in agreement but the appellant had informed to the audit team that it relates to 'finance cost' and other fixed cost(s) of the entire setup. The audit team termed the fixed job charges as 'Supply of Tangible Good Service' as defined under the Finance Act 1994 and on such part, raised the demand of service tax amounting to Rs. 4,68,36,586/- by invoking extended period of limitation by alleging suppression of facts under Section 73(1) of the Finance Act 1994. Here it is pertinent to mention that in the agreement with the Principal Manufacturer, it was clearly mentioned that "in any financial year total job charges, charged by the packer (appellant) through (1st & 2nd invoices), shall not exceed the total Job Charges determined by the bottler". 3. The Audit team had also observed that the appellant had availed & utilized inadmissible CENVAT Credit amounting to Rs. 11,05, 068 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Duty. Since the entire Job Charges have already suffered Excise Duty, demand of service Tax again on the same transaction or value, amounts to double demand, which is not permissible in the scheme of service tax. 7. The process undertaken by the Appellant amounts to manufacture as per the definition of manufacture, and the Appellant is discharging duty of excise on the goods so manufactured, and only the process which does not amounts to manufacture is liable to be taxed under the Finance Act 1994. Before the introduction of Negative list regime, the 'Business Auxiliary Services' deals with such type of situation and in the exclusion clause of the definition of BAS any activity that amounts to "manufacture" within the meaning of clause (f) of section 2 of the Central Excise Act, 1944 (1 of 1944). After the introduction of Negative list, Section 66D(f) of the Finance Act, 1994, any process amounting to manufacture or production of goods is not a taxable service . Accordingly, it is clear that if the process amounts to manufacture, then no service tax liability arises. The Mega exemption Notification Number 25/2012 dated 20.06.2012 also provides that "any goods on which appropria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,75,558/- is concerned, the allegation of Revenue is that this relates to civil construction which is not based on the correct facts. 9.3 As per the audit memo, the expenditure incurred is for erection or sinkage of bore well in the factory premises. For the manufacture of beverages for human consumption availability of pure and good quality drinking water is essential and is the major raw material or input. Thus the expenditure or service incurred for obtaining the inputs - pure drinking water is allowable within the definition of input and input service as defined in Rule 2(k) & (l) of Cenvat Credit Rules, 2004. Further, appellant has incurred expenditure in setting up of plant and machinery which is not prima facie in the nature of civil construction. The appellant had categorically stated that the expenditure is attributable to erection of machinery and not for any civil construction which contention have not found to be untrue. Further, appellant have erected storage tank having chemical coating. Storage tank is a specified capital asset as defined in Rule 2(a)(A) of Cenvat Credit Rules. Accordingly, appellant is entitled to cenvat credit for the same. 9.4 Further, as per au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... another for consideration and includes the 'declared services'. In the instant case, the appellant is carrying out an activity which is in nature of service for another person (HCCBPL), for consideration - fixed charges. The activity of appellant is polarizing act, i.e. non manufacturing of goods for any other manufacturer, as job work is restricted for HCCBPL and they are paid some consideration for this activity. Such activity is taxable as a declared service 66E(e) which provides - agreeing to the obligation to refrain from an act, or to tolerate an act or a situation, or to do an act. 10.1 Learned Authorised Representative for the Revenue also supported the impugned order with respect to disallowance of cenvat credit. 11. In reply the appellant Counsel contends while making such an allegation Revenue had not considered that the effective or general control does not mean always physical control, and even if the manner, method, modalities and the time of the use of goods is decided by the lessee or the customer, it would be the effective or general control over the goods. The approvals, concessions, licences and permits in relation to goods would also be available to user of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the client premises to store such gases for subsequent consumption. For such activity, they are collecting fixed facility charges apart from the sale consideration for the gas. Such fixed facility charges were proposed to be taxed under Section 65(105) (zzzzj) of the Finance Act, 1994, under the head SOTG. The Board vide letter dated 10.11.2014 have clarified that such facility charges form part of transaction value for the purpose of Central Excise duty. Accordingly, this Tribunal set aside the order and allowed the appeal of BOC India Limited. 13. As regards cenvat credit, we find that as per the definition of input service, any service availed by the manufacturer of dutiable goods having direct or indirect nexus with the manufacturer of dutiable goods is an allowable input service. We further find that there is no nature of pure civil construction service in the facts and circumstances and the facts stated by the appellant and as taken by audit team are undisputed. From the details as recorded in para 22 of the show cause notice for disallowing cenvat credit of Rs. 2,75,558/-, we find that this relates to input services which are directly relatable to procurement of input and/o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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