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TMI Blog2024 (7) TMI 269X X X X Extracts X X X X X X X X Extracts X X X X ..... amages, losses or injuries arising from unintended events and does not emanate from any obligation on the part of any of the parties to tolerate an act or a situation and cannot be considered to be the payments for any services.' The facts of the present case are squarely covered by the aforesaid decision of the Tribunal - the impugned order cannot be sustained - Appeal allowed. - HON BLE MR. P.K. CHOUDHARY, MEMBER (JUDICIAL)HON BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) Ms. Manasi Patil, Advocate for the Appellant Shri Bamin Tari Shri Manish Raj, Authorized Representative for the Respondent ORDER P. K. CHOUDHARY: The present appeal has been filed by the Appellant assailing the Order-in-Appeal No.102/CE/Appeal/Audit LKO/2018 dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L makes payment of job-charges on per kilo basis of biscuits manufactured with such incentives other charges as may be mutually agreed in respect of biscuits manufactured. At times, due to less demand in the market the Order for manufacture of biscuits by PBPL is for lesser quantity and as a result, some portion of the spare manufacturing facility of the Appellant remains unutilized and for covering the said costs for unutilized capacity, PBPL pay an amount as EX-GRATIA to the Appellant only in cases where there is low utilization of the manufacturing capacity. The said amount of EX-GRATIA is computed based on various factors like length and width of oven, product output ratio, etc. Under the aforesaid factual position, Show Cause Notice SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e there is under utilization of the same, there is no bar for utilization of the same for their own independent manufacture or manufacture for others; (v) that CBIC vide its Circular No.178/10/2022-GST dated 03.08.2022, has clarified that where any amount is received under a contract as a compensation or liquidated or unliquidated damages, it cannot be termed 'Consideration', and hence the said clarification would support the stand taken by the Appellants; (vi) that the fact of manufacture of biscuits for PBPL is well known to the dept as the copy of Authorization dated 19.12.2009 filed under Notification.No.36/2001-CE(NT) was filed with the dept; (vii) that, there was no conscious and deliberate withholding of information with an i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acity of the assessee. The Lower Authorities have invoked the provision of the Section 66E (e) of the Act which relates to the definition of the declared services. The same is to the effect that (e) agreeing to the obligation to refrain from an act, or to tolerate an act or a situation, or to do an act . Provisions of Section 65B (44) of the Act refers to the process amounting to manufacture or production of goods on which the duty is leviable under Section 3 of the Central Excise Act, 1944 as on service. However no Service Tax is leviable on such services, as the same is covered under the negative list. Further, agreeing to the obligation to refrain from an act, or to tolerate an act or a situation, or to do an act is a declared service on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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