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Vardhman Milk Dairy Pvt. Ltd V/S Commissioner of Central Excise

    Service Tax Appeal No. 2823 of 2012 (Arising out of Order-in-Original No. 21/2012(ST) Dated: 12.6.2012 Passed by the Commissioner of Central Excise, Jaipur) and Final Order No. 56899/2017

    Decided On, 26 September 2017

    At, Customs Excise Service Tax Appellate Tribunal Principal Bench New Delhi

    By, MEMBER

    For Petitioner: Kumar Vikram, Advocate And For Respondents: Sanjay Jain, DR

Judgment Text

1. The present appeal is filed by the assessee-Appellants against the Order-in-Original No. 21/2012(ST) dated 12.06.2012 passed by the Commissioner of Central Excise, Jaipur. The period in dispute is 01.04.2006 to 30.09.2010. The brief facts of the case are that, during the period under consideration

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, the assessee-Appellants were providing the services of chilling of Milk to M/s Reliance Diary Food Ltd. The Department brought the said services into the net of Service Tax. Being aggrieved, the assessee-Appellants have filed the present appeal.

2. With this background, we have heard Shri Kumar Vikram, learned counsel for the assessee-Appellants and Shri Sanjay Jain, learned DR for the Revenue.

3. After hearing both sides and on perusal of the material available on record, it appears that the issue stands settled by the Tribunal in the case of Sharma Ice Factory vs CCE, Jaipur-I : 2015 (37) STR 660 (Tri.-Del) = , wherein it was observed that:

"5. We have considered the submissions from both the sides and perused the records. There is no dispute about the nature of the appellant's activity - chilling of milk to temperature below 5°Celcius for M/s. SZDUSS Ltd. No other activity like pasteurization etc. is involved. We are of the view that mere chilling of milk to temperature below 5°Celcius for the purpose of its long distance transportation, does not amount to production or processing of goods, as there is no permanent or temporary change in milk other than lowering of the temperature by the process of chilling of milk, due to which it can be transported over long distance without getting spoiled. The Apex Court in the case of Commissioner of Income Tax v. N.C. Budharaja & Co., reported in 2004-ITR-412 (S.C.) = has held that word "production", when used in juxtaposition with word "manufacture", takes in bringing into existence new goods by a process, which may not amount to manufacture, Therefore for "Production", there must be some change in the raw-material subjected to process, though by that change no new product with distinct characteristics, commercial identity and usages has emerged. The process of chilling of milk to make it fit for long distance transportation without getting spoiled, which does not bring into existence any change whatsoever, would not amount to production or processing of the goods not amounting to the manufacture. We also find that earlier, the Commissioner (Appeals) on this very issue had taken view that chilling of milk is not Business Auxiliary Service covered by Section 65(19)(v) of the Finance Act, 1994. In view of this we hold that impugned order is not sustainable. The same is set aside. The appeal as well as the stay application and the application for early hearing stands disposed off."

4. By following our earlier decision (supra) and considering the totality of the facts and circumstances of the case, we set aside the impugned order and allow the appeal. In the result, the appeal filed by the assessee-Appellants is allowed

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