TMI Blog2015 (10) TMI 2400X X X X Extracts X X X X X X X X Extracts X X X X ..... to the airlines in the aircraft. In the aircraft, the heated items are also put in such trays and served to the passengers. - Invocation of extended period of limitation. Held that:- just because particular goods are classifiable under a particular heading, it will not automatically mean that the activities carried out by an appellant amounts to manufacture. It is for the Revenue to prove that the activity carried out by the appellant amount to manufacture and it satisfies 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 eith ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... & 1783/2011 And E/315 & 316/2012 - final order No. A/2701-2706/2015-EB - Dated:- 10-8-2015 - Shri P.K. Jain, Member (Technical) And Shri S. S. Garg, Member (Judicial) For the Petitioner : Shri Gajendra 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 on the cutlery pack s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) XI Telecom 1999 (105) ELT 262 (AP); (ii) REPL Engineering 2002 (147) ELT 156; (iii) Dalmia Industries vs. Commissioner of Central Excise 1999 (112) ELT 305; (iv) Ti Diamond Chain vs. Commissioner of Central Excise 2000 (126) ELT 790 3.3. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ul 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 of judgments some of which were the same as quoted by the earlier counsel and some additional For the sake of brevity, we are not repeating these submission again. 4. The learned Additional Commissioner (AR) took us through and reiterated the findings in the impugned orders. 4.1. He submitted that the goods are undoubtedly covered under the heading 2108.99 up to 28/02/2005 and under Tariff heading 2106.90 99 thereafter. He further submitted that the card put in the cutl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Excise, Delhi vs. Ace Auto Components 2011 (263) ELT 3 (SC) in support of his contention. 4.2. As far as extended period of limitation is concerned, the learned AR submitted that they have never declared in any of the documents that they are supplying the whole meal to the airline and therefore there is a clear cut suppression in the statutory documents and, therefore, the extended period of limitation is correctly invoked. 5. We have considered the submissions of both the sides. 5.1. At the outset we observe that there 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods being supplied are branded goods and we find that, almost identical situation existed in the case of Australian Food India (P) Ltd. (supra) decided by the hon ble Supreme Court reported in 2013 (287 ELT 385 (SC). We therefore, reject the appellants contention as far as branding of the goods is concerned. 5.3. The other issue is whether in the facts and circumstances of the case extended period of limitation is invokable or not. We find 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 appellants are engaged in providin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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