TMI Blog2017 (9) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... ts cited by the Ld. Counsel, which was not considered by the adjudicating authority while arriving at his independent opinion. Therefore in our considered view the matter needs re-consideration by the adjudicating authority - appeal allowed by way of remand. - E/3412 to 3415/06 - A/88555-88558/17/EB - Dated:- 20-7-2017 - Shri Ramesh Nair, Member (Judicial) And Shri Raju, Member (Technical) Shri D.B. Shroff, Sr. Counsel with Shri Dinesh Aggarwal, Consultant and Shri Pranay Shah Ld. Advocate for Appellant Shri Ajay Kumar. Jt. Commissioner (A.R) for respondent ORDER Per : Ramesh Nair The fact of the case is that the appellants are operating Restaurants under the name and style of McDonald s manufacturing and selling edible goods in retail namely Preparation of Meat, Preparation of Vegetable and Preparation of Chocolates, which were proposed to be classified under Chapter Sub-heading 1601.10, 2001.10 and 1803.00 respectively of the Central Excise Tariff Act 1985. After detailed investigation by the departmental officers show cause notices were issued, wherein it was alleged that the goods manufactured and sold by the various restaurants of the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at as per Revenue the main issue in the case is that the food preparation of Chapter 16 and 20 falling under Section IV of the Central Excise Tariff Act 1985, are subjected to excise duty only if the said edible goods is put up in unit container and bearing a brand name . It is his submission that the Appellant vehemently submitted before the adjudicating authority that the Appellant use paper for serving the food to the customer, which is in fact not a unit container because it does not bear any indication of the quantity or weight of the goods and it cannot be treated as being designed to hold a pre-determined quantity as per the definition of Unit Container provided under Section Note 1 to Section IV of the Central Excise Tariff Act, 1985. The definition of Unit Container has clearly mentioned that the unit container ............. designed to hold a pre-determined quantity or number. He submits that the Ld. Adjudicating Authority has proceeded on the observation that the definition of unit container has no mention that pre-determined quantity or number is required to be mentioned on the container. He submits that as per the definition of unit container, it is very important th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... natively made submissions on various other issues such as classification, contents of ingredient in the product for correct classification, deeming manufacture and section note, computation of duty, extended period and penalty etc. 3. On the other hand, Shri Ajaykumar Ld. Jt. Commissioner (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. As regard the main issue that whether the edible foods product sold by the appellant is in unit container or otherwise, he refers to the definition of container provided under the Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act. 1992 and Seeds Act, 1966. He submits that as per the definition of container provided in the above Act, the container used by the appellant for selling of their edible food preparation qualifies the term unit container accordingly the goods are liable to excise duty under the classification of CSH 1601.10 and 2001.10. 4. We have carefully considered the submissions made by both the sides. We find that the larger issue in the present case is that whether the edible preparation sold by the appellant s resta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the trade name, brand name and logo of M/s. McDonald's Corporation, U.S.A. on these containers. 33.6 With regard to the purpose of putting the logo and marks on the containers, it is argued that the same is done not to identify the Noticee with the products (as envisaged under the relevant provisions of the law dealing with this aspect of the matter) and on no wrapper, carton, box or anything else, the name of the Noticee (Hardcastle Restaurants Pvt. Ltd) is printed and so the question of the trademarks, etc. indicating a relationship between the goods and the user of the mark (the Noticee) does not arise at all. I find that this is exactly the Department s case. The allegation is that they are using the logo of some person i.e. logo of M/s. McDonald s Corporation U.S.A. on the goods manufactured by them for the purpose of indicating, or so as to indicate a connection in the course of trade between the product and some person i.e. M/s, McDonald's Corporation, U.S.A. Merely because they have not printed their name i.e. HRPL's name on the containers does not render the goods unbranded. The whole purpose of using this logo is to encash on the brand value of M/s. Mc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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