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2016 (6) TMI 232 - CESTAT NEW DELHI

2016 (6) TMI 232 - CESTAT NEW DELHI - 2016 (344) E.L.T. 1016 (Tri. - Del.) - Manufacturing of a product (powder) called Body Plus - Classifiable under CTH 2108.99 or 2108.91 - rate of duty - Held that:- The goods covered under CTH 2108.91 are those not bearing a brand name and CTH 2108.99 covers “other” goods, which means goods bearing brand name. Thus, notwithstanding the statement of the Managing Director, it is clear from the foregoing analysis that as the impugned goods cleared from Maksi Ro .....

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those not bearing brand name, which means CTH 2108.99 covers only those goods which bear brand name. Consequently the impugned goods, even going by the implication of the show cause notice, would at best be covered under CTH 2108.91 which attracts nil duty. - In these circumstances without going into any other aspect of case when the duty leviable on the impugned goods is nil the question of any evasion simply does not arise and consequently the question of any penalty on the appellants woul .....

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nterest and penalties. 2. The facts of the case, briefly stated, are as under: M/s Zeal Agro Chem (P) Ltd.. 76/1, Industrial Estate, Maksi Road, Ujjain was manufacturing a product (powder) called Body Plus marketed by Rachna Health Care Pvt. Ltd. which owned the brand name Body Plus. The said product was cleared by M/s Zeal Agro Chem (P) Ltd., Maksi Road, Ujjain (hereinafter referred to appellant No. 1) in bulk without putting any brand name thereon. These goods in bulk were transferred to M/s Z .....

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t Badarkha Babaji was merely an extension of the factory of appellant No. 1 (at Maksi Road). 3. Ld. Advocate for the appellant contended as under: (i) As per chapter note 3 and chapter 19 and chapter note 7 of Chapter 21 of Central Excise Tariff, labelling, relabelling or repacking from bulk pack to retail pack amounts to manufacture in respect of goods covered under the said chapters and therefore the processes carried out at the godown located at Badarkha Babaji village amounted to manufacture .....

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ed goods and therefore could not be classified under 2108.99 but would at the most be covered under 2108.91 where duty rate is nil. 4. Ld. DR, on the other hand argued that the Director in his statement had agreed that the impugned goods were liable to duty @ 16% ad. val. under Chapter 2108.99 and that sending the goods in bulk to godown at Badarkha Babaji to repack and put the brand name was only a modus operandi to evade payment of duty and Badarkha Babaji godown was nothing but an extension o .....

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brand name Body Plus was put on the goods only in the godown at Badarkha Babaji village and not at the time of clearance of the goods in bulk from Maksi Road factory (appellant No. 1). No show cause notice demanding duty has been issued in respect of clearances from godown at Badarkha Babaji. Incidentally, the ld. Advocate contended that Badarkha Babaji is located in the rural area and therefore clearances from the said godown were entitled to the SSI exemption as per para 4(c) of Notification N .....

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own would qualify as factory. However, we are not dwelling on this point any further because clearances from godown at Badarkha Babaji are not a subject matter of this case and no show cause notice is issued to Badarkha Babaji unit of the appellant. We however do not agree with the contention of Revenue that godown at Badarkha Babaji which is 20 km away from appellant No. 1 (Maksi Road) is an extension of factory at Maksi Road. As regards the clearances of the impugned goods from factory at Maks .....

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. For ease of reference description under Chapter 21.08 is reproduced below: 21.08 Edible preparations, not elsewhere specified or included 2108.10 Preparations for Lemonades or other Beverages intended for use in the manufacture 2108.20 Sharbat 2108.30 Prasad or Prasadam 2108.40 Sterilised or Pasteurised Miltone Other: 2108.91 Not bearing a brand name 2108.99 Other It is clear from the above description that the goods covered under CTH 2108.91 are those not bearing a brand name and CTH 2108.99 .....

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