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Taj Sats Air Catering Ltd., Manish Chiranewal, Oberoi Flight Services, G Srinivasan, Sky Gourmet Air Catering Pvt. Ltd. & G.P Chaturvedi Versus Commissioner of Central Excise, Mumbai I

2015 (10) TMI 2400 - CESTAT MUMBAI

Manufacturing activity or not - preparation of cutlery pack for airlines - they put a card showing their name on the cutlery pack so that it is known to the passengers that the catering is by them - items like dal, rice, curry, etc. which are separately packed. - In addition to these items, appellants also bought other items like butter, jam, pickles, etc. manufactured by other manufacturers which are excise duty-paid, if applicable. They put such items on the tray, along with bread, etc. and th .....

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atisfies the criteria prescribed by the hon ble Supreme Court, viz. new name, character and use. In our view, adjudicating authority has not given any findings on this issue.

Extended period of limitation - Held that:- the appellants were registered with the department either for payment of excise duty or for payment of service tax. Some of the appellants were manufacturing cake pastries, chocolates and were regularly paying excise duty. Further, it is very well known that the appella .....

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nts and, therefore, in our considered view, the goods being supplied are branded goods and we find that, almost identical situation existed in the case of Australian Food India (P) Ltd. (2013 (1) TMI 330 - SUPREME COURT) decided by the hon’ble Supreme Court -

For the first issue whether the activity amounts to manufacture or not, we would have normally remanded the matter to the Commissioner for examining the same and give his finding. In the facts and circumstances of the case, in o .....

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a Jain, Advocate And Shri Jitu Motwani, Advocate For the Respondent : Shri V.K. Agarwal, Additional Commissioner (AR) ORDER Per: P.K. Jain: Common issue is involved. Hence, the appeals are being taken up together for disposal. 2. Brief facts of the case are that the appellants are flight caterers. They prepare certain edible items in their factories such as bread, cakes, pastries, chocolates and pay excise duty on such items. In addition they make cutlery pack and put a card showing their name o .....

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able. They put such items on the tray, along with bread, etc. and these are handed over to the airlines in the aircraft. In the aircraft, the heated items are also put in such trays and served to the passengers. Revenues case is that complete tray containing meal is an edible preparation with the brand name of the appellants and they have to pay excise duty on such items classifying the product under heading 2108.99 of the Central Excise Tariff Act. The said heading covers edible preparation wi .....

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and Maruti Suzuki vs. Commissioner of Central Excise 2015 (318) ELT 353 (SC). 3.2. The other submission of the learned counsel was assembling various food products/items together in a tray does not amount to manufacture and in support of this contention he quoted that similar issue had come up relating to cable jointing kits and various judicial forums has held that putting together various items will not amount to manufacture. In support, the learned counsel quoted the following case laws: (i) .....

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during the journey and the demand is confirmed beyond jurisdiction. 3.4. Another contention of the learned counsel is that the stowage sticker cannot be termed as labels bearing brand name and there was no separate labels in the tray as served to passengers during the period under consideration. It was also submitted that the ratio of the decision of the Tribunal in the case of Taj Madras Flight Kitchen 2010 (262) ELT 733 is not relevant in the present case as the period involved in the said cas .....

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r food items such as rice, dal, curry, curd, etc. to various airlines for serving on the aircrafts and under the circumstances, it cannot be said that there was existence of fraud, collusion or suppression of material facts with willful intention to evade payment of duty. In support of the said contention a number of judgments were quoted. 3.6. The learned counsel on behalf of the appellant, M/s. Sky Gourmet Air Catering Pvt. Ltd. also took similar stands on various points and also quoted number .....

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s the name of the caterer and the passenger travelling in the air are assured of the quality and also the brand name of the caterer. He submitted that it is immaterial that the brand name stickers are not affixed on each and every item. What is material is that the passenger notes that the catering is being done by the appellants. He further submitted, the fact that few items like pickle, jam, butter, etc. are made by different persons is of no consequence as those are small items and the other .....

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d. He further refer to the judgment of the honble Supreme Court in the case of Commissioner of Central Excise vs. Australian Foods India (P) Ltd. reported in 2013 (287) ELT 385 (SC) to submit that the goods/meals supplied by the appellants have to be considered as branded goods/meals only. Learned AR also submitted that the judgments of the hon ble Supreme Court in the case of Kohinoor Elastics Pvt. Ltd. vs. Commissioner 2005 (188) ELT 3 (SC) and Commissioner of Central Excise, Delhi vs. Ace Au .....

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e is no dispute about the classification of the goods/meals. The point that has been disputed by the learned counsels for the appellants is that the activity undertaken by them does not amount to manufacture as they are only putting certain items in the tray and such activity cannot be considered as amounting to manufacture. We have gone through the findings in the impugned order and we observe that even though this point was taken up before the adjudicating authority, however, no findings have .....

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ia prescribed by the honble Supreme Court, viz. new name, character and use. In our view, adjudicating authority has not given any findings on this issue. 5.2. The second issue is about the brand name. As far as the said issue is concerned, we are not impressed with various arguments of the learned counsels for the appellants that the individual items are not affixed with the sticker of the appellants and the card with the brand name is put only on the cutlery pack, the goods cannot be consider .....

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