9911796707
TMI Blog2007 (3) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... ns such as bhujia and chabena. The Appellant started production of two out of four items abovementioned, namely, roasted peanuts and moongfali masala mazedar only in July and September, 1997 respectively. Prior to the above dates, they were in the business of manufacturing chholey masala and aloo bhujia. 3.At this stage, we may clarify that the Department has accepted the claim of the appellant that chholey masala and aloo bhujia fell under Heading 'namkeen' under 21.08. The appellant has been given exemption benefit accordingly. Therefore, in the present civil appeals there is no dispute regarding chholey masala and aloo bhujia. 4.It is the case of the Department that roasted peanuts and moongfali masala mazedar are the two items which do not fall under Heading 21.08. It is the case of the Department that Chapter 21 deals with Miscellaneous Edible Preparations. It is the case of the Department that chholey masala and aloo bhujia fall under Chapter 21, but not roasted peanuts and moongfali masala mazedar. According to the Department, roasted peanuts and moongfali masala mazedar are the two items which will fall under Heading 20.01 in Chapter 20. According to the Department, Chapt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... include products commonly known as namkeens, mixtures, bhujia, chabena or by any other name. According to Chapter Note no. 10, such products shall remain classifiable under sub-heading 2108.99 and, therefore, the appellants were entitled to the benefit of exemption notification. We do not find any merit in this contention. Firstly, a roasted peanut is not a product commonly known as namkeen. It cannot be compared to bhujia. In the case of bhujia, e.g., not only salt but even masala, salt, gram flour are some of the ingredients which are used in the preparation of bhujia. Therefore, a roasted peanut cannot be compared to a bhujia. Similarly, a roasted peanut is not only known in the market as a bhujia or chabena. In the circumstances, there is no merit in the contentions raised on behalf of the appellant-assessee. As stated above, roasted peanut is also a preparation, however, it is a preparation of nuts like almonds, peanuts, ground-nuts etc. They are products which are prepared or preserved by processes like roasting. As stated above, roasting is not chilling, it is not freezing. As stated above, roasting is not one of the enumerated processes in Chapter Note No. 1 to Chapter 20. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls decided today by us being Civil Appeal Nos. 8595-8596/2001. 12.In our judgment in Civil Appeal Nos. 8595-8596/2001, we have held that roasted peanuts unlike moongfali masala mazedar is a preparation falling under sub-heading 2001.90 of Chapter 20. To that extent, we have held in favour of the Department. Consequently, the question which arises in present Civil Appeal nos. 1459-1460/2002 is whether the price charged by the assessee, in the facts and circumstances of the case, has to be considered as cum-duty price. Essentially these civil appeals are quantum appeals. It is the case of the Department in the present civil appeals that all throughout the years the assessee has claimed that roasted peanuts came under Chapter 21 and, consequently, the said item stood exempted from payment of duty under above exemption notification dated 1-3-1997. Therefore, according to the Department, all these years the assessee had cleared the goods on the footing that roasted peanuts were exempted. They have filed the requisite declarations/classifications on that basis. According to the Department, since the assessee had cleared roasted peanuts without payment of duty during the relevant years, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onditions of sale between the assessee and his customer, the original consideration (including duty, if any) received by the assessee for sale in wholesale trade has to be taken as cum-duty price. In this connection, reliance is placed by the assessee on the judgment of the Tribunal in Srichakra Tyres Ltd. v. Collector of Central Excise, Madras reported in 1999 (108) E.L.T. 361. 14.In our view, the above judgments in the case of Maruti Udyog Ltd. and Srichakra Tyres Ltd. have no application in the facts of the present case. In the case of Asstt. Collector of Central Excise v. Bata India Ltd. reported in 1996 (84) E.L.T. 164 this Court held that under section 4(4)(d)(ii) of Central Excises and Salt Act, 1994 the normal wholesale price is the cum-duty price which the wholeseller has to pay to the manufacturer-assessee. The cost of production, estimated profit and taxes on manufacture and sale of goods are usually included in the wholesale price. Because the wholesale price is usually the cum-duty price, the above section 4(4)(d)(ii) lays down that the "value" will not include duty of excise, sales tax and other taxes, if any, payable on the goods. It was further held that if, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
