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M/s Bright Enterprises Private Ltd., Ms Sonica Malhotra Director & Mr. Nimit Gupta Finance Manager Versus Commissioner of Central Excise & Service Tax, Noida

2018 (1) TMI 618 - CESTAT ALLAHABAD

SSI Exemption - use of Brand name - It appeared to Revenue that the appellants are using the brand name of Radisson below the words chocolate box on the packing material - extended period of limitation - Held that: - extended period of limitation is not invocable in the facts and circumstances, as admittedly the appellants were all along registered with the Central Excise Department/Services Tax Department. They had been filing their service tax returns which have never been found to be untrue a .....

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I find that there is no demand for the normal period as admittedly the appellants have taken registration since April, 2014 and are paying duty in accordance with law as advised - SCN not maintainable - appeal allowed. - Appeal Nos. E/70064, 70065 & 70066/2017-EX[SM] - Final Order Nos. 71960 - 71962/2017 - Dated:- 21-9-2017 - Mr. Anil Choudhary, Member (Judicial) Shri Rahul Agarwal (Adv.) & Ms Sanyukta Singh (Adv.) for Appellant Shri Sandeep Kumar Singh (Dy. Commr.) AR for Respondent ORDER .....

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ery manufactured is sold to customers across the counter which is located inside the Hotel. The appellants are registered with the Service Tax Department and are paying service tax regularly including the services of Mandap keeper & Catering, Restaurants, etc. Prior to 2010, the appellants were availing SSI exemption. There was an inspection by Anti-Evasion Wing of the Department on 11/09/2008 and pursuant thereto show cause notice dated 03/06/2009 was issued alleging that during checking of .....

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hocolate box on the packing material. It is mentioned "Radisson MBD Hotel, Noida." This show cause notice was issued from the period 2005-06 to 31/03/2008. The said show cause notice was finally settled in favour of the appellants by Order-in-Appeal No. 211-12/CE/APPL/Noida/2010 dated 27/07/2010 wherein it was held that the appellants are not using the brand name of another and accordingly, the amount deposited during investigation etc. was ordered to be refunded. 2. Subsequently there .....

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urns, etc. Pursuant to audit no objection has been raised by the Department. In the meantime the appellants had surrendered that Central Excise Registration Certificate as they were not having taxable clearance of the confectionery items, as the SSI limit had been increased to about ₹ 4 crores. The appellants also filed application for refund of duty paid under protest which was refunded to them vide order dated 22/02/2011 passed by the Deputy Commissioner of Central Excise, Noida. Subsequ .....

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herein it was alleged that the appellants are manufacturing and clearing dutiable food items namely chocolate and other food preparations containing cocoa falling under CETA 1806, pastry cakes and biscuits falling under CETA 1905, lemonade and fresh lime falling under CETA 22021020, beverages like tea and coffee falling under Chapter 22 and juices falling under Chapter 20. The appellants have got food revenue of more than ₹ 4 crore in 2008-09 (total of restaurant sales + pastry shop). The .....

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eligible for availing any exemption from 2009-10 onwards as the aggregate value of clearances of all the excisable goods (dutiable and exempted) for home consumption exceeds ₹ 4 crores in each of the Financial Year from 2008-09 onwards and it does not include any of the clearances mention in Para-3A of said Notification. Accordingly, it appeared that appellants were liable to pay Central Excise Duty at appropriate rate as amended from time to time for clearance of the manufacture dutiable .....

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brand name, have taken registration with the Department and are paying duty. However, in respect of beverages, they are still not discharging their liability. Accordingly, the appellants were called upon to show cause as to why Central Excise duty amounting to ₹ 74,45,620/- be not demanded for the period June, 2010 to March, 2015 with proposal to appropriate ₹ 8 lakhs deposited vide Challan during investigation on 05/07/2014. Further penalty was proposed on the appellant company and .....

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appellants company and further penalty of ₹ 2 lakhs was imposed on the Director Ms Sonica Malhotra under Rule 26 and also penalty was ₹ 1 lakh on Shri Nimit Gupta, Manager of Finance under Rule 26 of the CER, 2002. As regards dropping of the demand with respect to the beverages etc., the Learned Commissioner have observed that tea, coffee, lemonade juice are not served to the customers in packed condition. Rather it is for immediate use or the consumption. None consumption of these .....

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issued in June 2009, which was finally settled in favour of the appellants by Order-in-Appeal passed by the Commissioner (Appeals) in July, 2010 and subsequent grant of refund. Further, there was an audit during year 2010 in which the appellants had produced all the relevant documents more fully noticed hereinabove, before the audit team, up to the period March, 2010 and /till the date of audit. Further the admitted fact that the appellants were paying service tax also on the confectionery manu .....

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on the sales across the counter and even if it is for argument sake, accepted to be excisable, in that case, the appellants will entitled to Cenvat credit of inputs used for manufacture of the confectionery and also adjustment of service tax already paid and thus the situation will be wholly Revenue neutral. Further, the appellants shall be entitled to the benefit of cum duty calculation of tax. It is also an admitted fact that the appellants have consumed the major part of the confectionery man .....

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