TMI Blog2016 (3) TMI 777X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g taxability of the whole tray as served to the passenger on the ground that the appellants are engaged in the manufacture of excisable goods, here food preparations which also contained a logo and name of the appellant. As such, proceedings were initiated to demand duty from the appellant on such branded food preparations prepared and cleared by them to various airlines classifying the same under C.E.T.H. 2108 for the financial year 2004-05 and under C.E.T.H. 2106 for the financial years 2005-06 and 2006-07. After due process the case was adjudicated vide the impugned order dated 18.02.2011. 3. The ld. Counsel for appellant submitted that: (a) The impugned order is legally unsustainable as it confirms duty on the tray consisting of all food preparations, salad, curd, sweets and water bottles. These items are not emerging due to process of manufacture undertaken by the appellant. The appellant is paying duty on various items like cakes, pastries and chocolates manufactured by them (b) The activity of placing various food items, prepared by the appellants as well as various bought out readymade items, in a tray either at the time of placing the tray in the trolley or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rations bearing the brand-name during the impugned period? (b) The sustainability of demand for extended period and penal action against the appellant. 7. Regarding the question whether the appellants are engaged in the manufacture of excisable goods namely, food preparations; we find there is no analysis or categorical finding by the Original Authority. Para G. 3 of the impugned order examines this question. The Original Authority reproduced the definition of manufacture as per section 2(f) and also extracts of Honble Supreme Courts orders in the case of M/s. Empire India Ltd. and A.P. State Electricity Board and there after he concluded that the appellants were engaged in the manufacture of excisable goods. 8. We find absolutely no analysis or discussions about the nature of manufacture undertaken by the appellant especially in the context of the appellants plea that the Department cannot tax the meal supplied by the airlines to the passengers on account of purported manufacturing activity on the part of appellant. 9. We find that the show cause notice proposed a demand on the ground that the entire food tray served on board in the aircraft is an item manufact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we find that the Original Authority has not examined sequentially the application of the said interpretation rules and also it is not clear which are all the equally competing heading meriting consideration for classification. The need for applying the above rule will arise thereafter only. 12. On perusal of the impugned order and on examining the submissions made by the appellants, we find that the Revenue has not established the liability on the appellant for their activity of manufacturing branded food preparations. 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 sustain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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