PML INDUSTRIES LTD. Vs. CCE

JUDGEMENT

(1.) LD . Counsel Shri J.M. Sharma submits that the same transaction of manufacture which was involved in the appellant's own case reported in has been held to be a service by the impugned order. The appellant was an approved 100% EOU for export of meat. When there was financial crisis, an arrangement was made between the appellant and other exporters to enable the appellant to carry out manufacturing activity in its plant. The activity of slaughter animal is for ultimate production of meat. That was held to be a manufacturing activity by the Ld. Commissioner in para 79(ii) of the order dt. 30.10.99. That finding remains untouched subsequently, nor the appellant was denied EOU benefit. The appellant came before the Tribunal for such relief. Tribunal in para 10 of the judgment reported in aforesaid case held that the EOU's obligation was to put the duty free items to export production. That was held to be done. When manufacture of meat is undisputed by the decisions of Tribunal and that remains undisturbed by any order of higher Court, a part of the manufacturing activity cannot be held to be "service" provided in piecemeal. Ultimate object of slaughtering was to manufacture meat. Such a manufacturing activity cannot be termed as service provided as a mechanized slaughter by Revenue. Ld. Counsel Shri Sharma draw our attention to page 92 to 96 of the appeal folder and submits that these agreements were before the Tribunal earlier in the aforesaid reported decision. Considering entire aspect of the matter, Tribunal granted benefit to the appellant earlier as a manufacturer. The duty demand, confiscation and penalties imposed on the appellant were set aside. Therefore, the order passed by the ld. adjudicating authority and confirmed by the appellate authority below cannot go beyond the decision of the Tribunal made as aforesaid. Accordingly, the appellant should succeed on all counts setting aside the impugned order.

(2.) LD . DR supports the order of the authorities below. He submits that page 93 to 96 of the appeal folder show the agreement between the parties and brings the appellant to fold of law for exigibility of service tax under the category of mechanized slaughter house service. The authorities below have thoroughly examined and found that the appellant has not carried out manufacturing activity but provided service of slaughtering. Therefore, the appellant should pay service tax.

(3.) IN the result, the appellant succeeds and we set aside the impugned order.