TMI Blog2009 (11) TMI 716X X X X Extracts X X X X X X X X Extracts X X X X ..... does not flow from the words which are used in the said notification i.e. sweet meats, bhujia, mixture, chabena etc. Appeal allowed - decided in favor of appellant. - ST/448/2007 - 1371/2009 - Dated:- 12-11-2009 - Shri M.V. Ravindran and P. Karthikeyan, JJ. Shri G. Shivadas and M.S. Srinivasa, Advocates, for the Appellant. Ms. Sudha Koka, SDR, for the Respondent. ORDER This appeal is directed against order-in-original No. 06/07 dated 14/15-3-2007. 2. The relevant facts that arise for consideration are as follows : The assessee is manufacturing Ready-to-Eat edible preparations like Veg-Kurma, Navarathan Kurma, Mixed Vegetable Curry, Alu Mutter, Dal Makhani, Rajma Masala, Palak Paneer, Dal Fry, Kharabath, Bisibelebath, Lemon Rice, Tamarind Rice etc. and Frozen Foods like Uttappam, Rice Idli, Rava Idli, Masala Dosa, Vada, Paratha etc., (hereinafter referred to as the impugned products) under the brand name of MTR. They have classified the goods under Chapter sub-heading 2108.99 (under sub-heading 21069099 after 1-3-2005) as Miscellaneous Edible Preparations and have been clearing the same by claiming full exemption from payment of duty under Sl. No. 14 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 14 of Notification No. 6/2002-C.E., dated 1-3-2002 as amended should not be denied to the impugned products (details indicated in the Annexure to the Show Cause Notice), which was manufactured by (II) Why the Central Excise Duty amounting to Rs. 29,43,285/- and Education Cess amounting to Rs. 58,866/- should not be demanded and recovered from them on the subject goods manufactured and cleared during the period from 1-11-2005 to 28-2-2006 under the provisions of Section 11A of the Central Excise Act, 1944. (III) Why interest at such rate as fixed by the Central government for the time being in force, should not be charged under Section 11AB of the Central Excise Act, 1944. (IV) Why Penalty should not be imposed on them under Section 11AC of Central Excise act, 1944/Rule 25 of Central Excise Rules, 2002. 3. The appellant filed a detailed reply to the show cause notice wherein they stated that the issue involved in this case is regarding the entitlement of exemption under Notification No 6/02-C.E., dated 1-3-02 in respect of goods mentioned in annexure to the show cause notices. It was the submission before the adjudicating authority that earlier show cause notices dated 28 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xemption under the preceding Notification No. 6/2000 and 3/2001, containing identically worded entries was available to the appellants. The impugned order has rejected the application of the earlier adjudication order dated 19-10-2001 on the ground that the appellants have added a few more items to the items already considered and decided vide Order-in-Original dated 19-10-2001 and that the department is not barred from re-opening the dispute to stop perpetuation of wrong assessment. The appellants submit that these findings are unsustainable inasmuch as it would be evident from a comparison of the items considered, in the earlier proceedings and in the present proceedings that the broad class of these remains to be Ready-to-Eat food preparations only. For e.g., Sl. No. 3 and 4 of Table 2 containing a list of items not eligible to exemption, refers to Ready-to-Eat Karabath, whereas, the same item was (considered at Sl. No. 1 of the Annexure to the Show-Cause-Notice dated 28-6-2001 (Page- 72). Similarly, Ready-to-Eat Kesaribath, Bisi bele bath etc. were also considered to be entitled to exemption in the earlier proceedings, whereas, the impugned order takes an opposite stand. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Rule of ejusdem generis seeks to state that the general words are construed as limited to things of the same kind as those specified and attempts to reconcile incompatibility between specific-- and general words so that all the words in a statute are given effect as far as possible without rendering any part superfluous. Justice G.P. Singh in his entry further states that the rule of ejusdem generis would apply only when : (a) the statute contains an enumeration of specific words; (b) the subjects of enumeration constitute a class or category; (c) that class or category is not exhausted by the enumeration; (d) the general terms follow the enumeration; and (e) there is no indication of a different legislative intent. It is further stated by Justice G.P. Singh that if the subjects of enumeration belong to a broad based genus as also to a narrower genus, there is no principle that the general words should be confined to the narrower genus. Applying the above tests of application of the rule of ejusdem generis, the appellants submit that sweetmeats, by themselves constitute a separate class, namkeens constitute a separate class and bhujia, mixtur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tems were thus classified as covered by the expression preparation . D. 2 The above exemption was continued in the following manner from time to time : Sl. No. in the Notfn. Notification No. Entry Rate of duty 1. 364/86-C.E., dated 29-7-1986 In the said notification, for the word idli-mix , the words papad, idli-mix , shall be substituted. NIL 5. 426/86-C.E., dated 18-9-1986 Papad, idli-mix, vada mix. dosa-mix, jalebi-mix,. gulabjamun-mix, or namkeens, such as bhujyia, chabena NIL 8. M.F. (D.R.) F. No. 334/1/89-TRU, dated 13-3-1989 Papad, idli-mix, vada-mix, dosa-mix, jalebi-mix, gulabjamun-mix or namkeens, such as bhujyia, chabena NIL 15. 77/93-C.E., dated 2-3-1993 Papad, idli-mix, vada-mix. Dosa-mix, jalebi-mix, or gulabjamun-mix, or namkeens, such as bhujia chabena NIL 25 (iii) 4/93-C.E., dated 28-2-1993 Papad, idli-mix, Vada-mix , dosa-mis, jalebi-mix, gulabjamun-mix, or namkeens, such as bhujyia. chabena NIL 21 (iii) 2/94-C.E., dated 1-3-1994 Papad, idli-mix, vada-mix ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r processing (such as cooking, dissolving or boiling in water, milk, etc.) 8% 8. 6/2000-C.E., dated 1-3-2000 Sweetmeats (known as misthans or mithai or by any other name), namkeens, bhujia, mixture, chabena and similar edible preparations in ready for consumption form, and papad. NIL 14. 3/2001-C.E., dated 1-3-2001 Sweetmeats (known as misthans or mithai or by any other name), namkeens, bhujia, mixture, chabena and similar edible preparations in ready for consumption form, and papad. NIL 14. 6/2002-C.E., dated 1-3-2002 Sweetmeats (known as misthans or mithai or by any other name), namkeens. bhujia, mixture, chabena and similar edible preparations in ready for consumption form, and papad. NIL The following goods, namely :- (i) Soya textured protein, soya yoghurt, soya tofu, soya based food preparations for infants use, soya milk powder, soya . The above table clearly shows that the intention of the Government as clarified in the year 1970 has been continued till date which was also the view of the department as evident from the Order-in-Original dated 19-10-2001 passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TE - Mutter Paneer 24 x 300g 47 RTE - Mutter Paneer 48 x 300g - Army 48 Frozen - Veg Paneer Curry 1 x500g 80 2. Frozen - Samoza 1 x (6 x 50g) 65 Frozen - Samoza 1 x (12 x 25g) 66 Frozen - Mutter Paneer Samoza 1 x (25 x 25g) 68 Frozen - Gopi Samoza 1 x (25 x 25g) 70 Ready to eat snacks By Notification Frozen - Carrot Samoza 25 x 25g 71 Frozen - Apple Samoza 25 x 25g 72 Frozen - Hara-Bhara Samoza 25 x 25g 73 Frozen - Pineapple Samoza 25 x 25g 74 Frozen - Onion Pakoda 10 x 17.5g 63 3. Frozen - Vegetable Burger Patties 1 x 100g 75 Frozen - Spicy Capsicum Strudel 9 x50g 76 Decision in the case of Anitha Sausages Preparations of mixed vegetable and classifiable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finding and submits that there is no merit in the appeal filed by the appellants. 6. In rejoinder, learned counsel submits that ready for consumption has to be read as an independent entry and it is undisputed that the items on which the benefit has been denied are ready for consumption. He would also draw our attention to the packs of the items, wherein it is very clearly indicated that these are ready for consumption items. The direction given in the packs for heating, the said goods is only for an individual preference of having hot food over the cold food. He would also submit that an identical issue was decided by the coordinate bench in the case of Hindustan lever wherein a classification of such edible preparations containing 23% of sugar will get covered under sweetmeat or otherwise. He relied upon the judgment only for the interpretation of the phrase similar edible preparation that include all sorts of preparations based of sugar not elsewhere specified and ready for consumption. It is his submission that in appellant s case the items are ready for consumption. 7. We have considered the submissions made at length by both side and perused the records The issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod; 14. On a careful consideration of the items which was in dispute before the adjudicating authority in the Order No. 63/2001 and the items which are in dispute before us today, we find that all the items are identical and they are only extension of product line, for example, the rice varieties which were in dispute earlier was restricted to bisibele bath and pongal while in the current case new varieties like tomato rice , lemon rice , sambar rice etc., are in dispute. As regards the other items also, we find that they are only an extension of the items which were initially manufactured/prepared in the year 2001. Since the revenue has accepted and has not challenged the OIO No. 62/2001 dated 18/19-10-2001 and accepted the findings they cannot re-open the issue in respect of very same assessee for subsequent period and in respect of the identical items manufactured by the appellants. 15. We find that the Hon ble Supreme Court in the following cases : (l) Birla Corporation Ltd. v. CCE, 2005 (186) E.L.T. 266 (S.C.) (2) CCE v. Bigen Industries Ltd., 2006 (197) E.L.T. 305 (S.C.) (3) Indian Oil Corporation Ltd. v. CCE, 2006 (202) E.L.T. 37 (S.C.) (4) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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