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GST will plug evasion by splitting up manufacture

Sukumar Mukhopadhyay / New Delhi 17 Jan 11 | 12:05 AM
198 Replies

Splitting up of manufacture that is the manufacturing process has been one of the favourite method followed by industries to avoid the excise duty. The idea is to carry on the last part of the manufacturing process (which adds value substantially) to another building with a different name of the company so that this part of the manufacturing process is not regarded as manufacture as understood in the excise law.

The reason why the manufacturers want to split the processes of manufacture in different factories is that in such a case, the last process is called by them value addition and not manufacture. The other advantage is that both the unfinished and finished goods usually fall under the same tariff heading as in the case of syringes and sterilised syringes. Then they argue that Revenue cannot charge duty twice under the same tariff heading. This issue is controversial and has gone to High Courts and Supreme Court several times.

The latest Supreme Court judgement on this issue is in the case of Union of India vs. Alembic Glass Industries Ltd. – 2010(259)ELT8(SC). In this case printing and decoration of glassware were not made in the same premises. The printing unit and the decoration unit were separate.

Revenue wanted to charge duty on both these processes. In a similar case [JG Glass Industries – 1998(97)ELT5(SC)], the Supreme Court had held that if the excise duty is charged both on printing as well as decoration, (which are at different premises), such duty will undoubtedly be on the value of the printed bottles which will include not only the cost of manufacture of the bottles but also the cost of printing charges. Following the judgement the Supreme Court ordered in this case also that the activity of decoration of glass not being manufacture by itself, excise duty is not leviable once again on this activity. The Court held that the plain glassware were by themselves commercial commodity and could be sold and used as such. By the process of decoration the basic character of the commodity does not change. If the printing and decoration on such glassware were carried out in the same premises, the value of the printing would be included in the tax net.

There are other examples of such activity. One such instance is when a tea set is manufactured in one factory, pays duty and then gets polished in another and flower designs incorporated in yet another. As the excise law stands now, these processes add value but by themselves do not constitute manufacture.

In yet another case a manufacturer was found clearing unsterilised syringes on payment of excise duty but then taking to another factory for the purpose of sterilising. The process of sterilisation kills germs. It does not create a new product as such but in the market it is a new product. So it is a new product for the purpose of excise duty. The manufacturer wanted to get the extra job of sterilisation done without paying central excise duty and calling it only a case of value addition but not manufacture. This is obviously an attempt at evasion of duty. The Tribunal in this case ordered that sterilisation is an act of manufacture and excise duty is payable though the manufacturer will get the CENVAT credit for the duty paid on the unsterilised syringes - CCE vs Servo –Med Industry P ltd, 2004 (172) ELT 318 (T).

The solution to such cases of avoidance of duty, which is strictly legal under the present excise law, will come when the GST is introduced down the line up to the retail stage. However we may point out here that although the excise duty on the value addition is avoided under the present excise law, the value addition attracts duty under the present system of State VAT. For the decorated glassware or garments or whatever pay the sales tax (VAT) once they go to wholesale market and to the retail market.

Email: smukher2000@yahoo.com 




198 Replies

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