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TMI Blog2008 (7) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... .K. Srivastava, Member (T) V. Sridharan, Bharat Raichandani and S.S. Gupta for the Appellant. Pramod Kumar for the Respondent. [Order A. K. Srivastava, Member (Technical). - These stay petitions have been filed by M/s. Midas Care Pharmaceuticals against the Order-in-Original dated 1-10-2007 passed by the Commissioner of Central Excise Customs, Aurangabad. The Commissioner, vide the impugned Order, has confirmed the demands of service tax of Rs. 1,99,91,835 and Rs. 3,49,55,798 together with interest and imposed equivalent penalties of Rs. 1,99,91,835 and Rs. 3,49,55,798 in respect of show-cause notices dated 6-6-2007 and 25-7-2007 respectively. The period involved is from 10-9-2004 to 30-6-2006 and 1-7-2006 to 30-6-2007 res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of India [2006] STT 245, when VAT has been paid on the transaction, no service tax on the same transaction can be levied. (iii) The activity amounts to manufacture within the meaning of section 2(f) of the Central Excise Act, 1944. The input and output are two different commercial products. Therefore, the process carried out by them is the process of manufacture. The definition of BAS excludes the activity which amounts to the process of manufacture. Therefore, it is not covered under the taxable service. In this connection, attention was drawn to the definition of manufacture under section 2(f) of the Central Excise Act, 1944 and section 2(f) of the MTP Act, 1955. The applicants contended that the meaning of the word 'ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 of 2008, dated 6-2-2008] and Som Distilleries (P.) Ltd. v. CCE, Raipur 2008 TIOL-356-CESTAT-Delhi and 2008-TIOL-328-CESTAT-Delhi respectively granted waiver of pre-deposit of service tax and penalty on the ground that the issue whether bottling of liquor amounts to manufacture or only packaging so as to attract service tax is pending before the Larger Bench of the Madhya Pradesh High Court. Therefore, similar waiver from pre-deposit of service tax and penalty may be granted in this case because of the matter being subjudice before the Larger Bench of the Madhya Pradesh High Court. 6. The learned J.D.R. on the other hand, contended that the Tribunal in similar facts and circumstances in the case of Rubicon Formulations (P.) Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding the Supreme Court judgment in the case of BSNL (supra) have been gone into and dealt with in great detail by the Commissioner in the impugned Order and the findings recorded. Prima facie, the findings of the Commissioner cannot be regarded as arbitrary and unreasonable. We note that the goods of particular brand are produced for particular party and supplied to that party, as per the contract. The applicants cannot use those specifications/brand names to produce the goods on their account. The applicants also cannot sell these branded goods in open market. Therefore, it is apparent that the applicants are producing goods for the client and are thus prima facie covered under BAS. The activity of production of goods in question does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, when all issues will be considered threadbare. Meanwhile, we feel that the applicants have not made out a strong case for the complete waiver of the pre-deposit of the amounts demanded vide the impugned order. Keeping in view all facts and circumstances of the case, we direct the applicants to pre-deposit a sum of Rs. 50,00,000 (Rupees Fifty lakhs only) towards service tax within eight weeks. On depositing the said amount within the stipulated period, the pre-deposit of the balance amount of service tax and penalties shall stand waived and recovery thereof stayed pending disposal of the appeals. Failure to comply with the aforesaid directions will result in the dismissal of their appeals without any further notice to them. - - TaxTMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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