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2016 (3) TMI 777 - AT - Central ExciseManufacture - complete food tray as served to the passengers on board the aircraft - edible preparations bearing the brand-name - sustainability of demand for extended period and penal action against the appellant - Held that:- Out of Food preparations as contained in the food tray served to the passengers on board, admittedly, the appellants did prepare dal, roti, rice, curry etc. and supplied the same in trays and bowls covered with aluminium foil. However, these are not the items on which Central Excise duty is sought to be demanded. The Central Excise duty was said to be demanded on the full value of the final complete food tray as served to the passengers on board the aircraft. There is nothing in the impugned order which will substantiate and support the claim of the Revenue on the taxability of such complete food tray on whole value. As such we find that the demand is not sustainable on this ground. Regarding the brand-name, we find that the Original Authority found that the appellants are supplying food preparations with brand-name to the airlines. Admitted facts are that the food prepared by the appellants is supplied without brand-name. In separate tray is the cutlery pouch which contains the label with logo and name of the appellant. The same is supplied separately. These are put together by the airline staff and served to the passengers. In any case since the Department has not established the sustainability of the demand on the ground of manufacture, this aspect on brand name is not further examined by us There is no supporting evidence to allege fraud, suppression with intend to evade payment of duty on the part of the appellants. In a similar matter, where appellants were one of the parties in appeal, the Tribunal in the final order [2015 (10) TMI 2400 - CESTAT MUMBAI] held that the appellants are providing in catering service to various airlines is very well known fact. In fact catering to the airline is their main business, and no such similarly placed caterer was paying excise duty on such meals. The Tribunal accordingly, held that it is difficult to say that there was suppression of fact or wilful misstatement of facts or intention to evade payment of duty. We find in the present case on a similar situation the demand after many years of the impugned period is not sustainable in view of the facts and circumstances of the case. As such, we find the impugned order is not sustainable both on the question of manufacture and on time bar. - Decided in favour of assessee
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