COMMISSIONER OF SERVICE TAX Vs. ZYDUS TECHNOLOGIES LTD

JUDGEMENT

(1.) Present appeal has been preferred by the appellant-Commissioner of Service Tax, feeling aggrieved and dissatisfied with the judgment and order dated 3-9-2012 passed by the learned Customs, Excise & Service Tax Appellate Tribunal (hereinafter referred to as "CESTAT") in Appeal No. ST/475/2011 ZYDUS TECH LTD V/S COMMISSIONER OF SERVICE TAX, 2013 30 STR 616, by which, the learned CESTAT has allowed the said appeal preferred by the respondent by quashing and setting aside the orders passed by both the authorities below and holding that the respondent shall be entitled to refund as claimed, with the following proposed substantial question of law:-

(2.) Mr. Y.N. Ravani, learned counsel appearing on behalf of the appellant has vehemently submitted that as such upto 28-6-2012 the respondent continued to submit application/sought extension for permitting to establish setting up a unit in SEZ and they rendered technical and scientific services for research during the aforesaid period and therefore, it cannot be said that the services were rendered for manufacturing and/or was related to various operations. Submitting accordingly, it is requested to admit/allow the present appeal.

(3.) On the other hand, Mr. Mihir Joshi, learned Senior Advocate appearing with Mr. Dhaval Shah, learned advocate appearing on behalf of the respondent has vehemently submitted the aforesaid issue is no longer res integra and the same is covered in favour of the assessee in the decision of this Court in the case of Commissioner of C. Ex., Ahmedabad-II v. Cadila Healthcare Ltd., 2013 30 STR 3. It is submitted that in the said decision it is held that services rendered even prior to the manufacture of final product can be said to be commercial activity and therefore, the assessee is entitled Cenvat credit. Having heard Mr. Ravani, learned counsel appearing on behalf of the appellant-revenue and Mr. Mihir Joshi, learned Senior Advocate appearing on behalf of the respondent-assessee and considering the proposed substantial question of law and controversy raised, we are of the opinion that the controversy involved in the present appeal is now not res integra in view of the decision of this Court in the case of Cadila Healthcare ltd. . Identical question came to be considered by the Division Bench of this Court that any services rendered even for the period prior to the actual manufacture of final product can be said to be commercial activity/production or not and in para 5.1(xix), the Division Bench has observed and held as under:-