TMI Blog2018 (1) TMI 618X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice dated 03/06/2009 was finally settled in their favour and refund allowed in July, 2010. The appellants had suo motu taken registration under Central Excise, in March, 2014 for manufacture and clearance of branded confectionery - there is no case of mis-interpretation, suppression or concealment of facts is made out against the appellants - the extended period of limitation is not invocable. So far the normal period is concerned 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 - 7196 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nown as chocolate box the cakes pastry etc. are sold to the customers who visit the pastry shop namely the chocolate box. It appeared to Revenue that the appellants are using the brand name of Radisson below the words chocolate 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 was an audit by the Noida, Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts 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 appellants had never submitted any information to the Central Excise authority about their sale crossing the assessable value of ₹ 4 crore in each of the Financial Year's 2010-11 to 2014-15 as admitted by Mr. Sanjay Arora Vice-President of Finance. The appellants have not paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the Director Ms Sonica Malhotra and the Manager Finance, Shri Nimit Gupta. 3. The SCN was adjudicated on contest vide Order-in-Original dated 27/10/2016 and a reduced amount of ₹ 21,54,521/- was confirmed towards chocolate and other food preparations including cocoa like pastry cakes, biscuits, etc. alongwith appropriation of ₹ 8 lakhs, as proposed. The demand of duty on other items like tea, coffee, juice, lemonade etc. was dropped. Further equal amount of penalty was imposed on the appellants company and further pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hotel premises, either in their restaurant or in their banquet hall under various heads of service like restaurant service, Mandap keeper service, etc. Such service tax was paid on proper due dates and service tax returns filed disclosing the turnover. Thus admittedly Revenue had all the information about the activities of the appellant company. And as such it is the admitted facts that Revenue accepted the service tax. The Central Excise duty cannot be demanded 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , suppression or concealment of facts is made out against the appellants. Accordingly I hold that the extended period of limitation is not invocable. So far the demand for the normal period is concerned I find that it is admitted fact that the major part of the confectionery manufactured by them is consumed in-house in rendering of services like restaurant service, Mandap keeper service, etc. Admittedly the appellants have paid the service tax on such services and filed appropriate returns. So far the normal period is concerned 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. Accordingly I hold that the show caus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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