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M/s Bharat Hotel Limited Versus CCE, Delhi

2018 (2) TMI 919 - CESTAT NEW DELHI

SSI exemption - calculation of aggregate value - Revenue held a view that since the appellants were engaged in preparing variety of food items using meat, vegetables, pulses etc. and these items being exempted from payment of Central excise duty, while calculating the aggregate value of clearances for SSI exemption under No/N. 8/2003 dated 01/03/2003, the gross value of all products is to be considered - Held that: - What is needed is to see whether a new, commercially identifiable product emerg .....

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the Chapters 16 to 20 will not meet the legal requirement of applying the provisions of Notification 8/2003. The gross turnover to arrive at the exemption limit for the base year has to be reckoned considering value of each one of the manufactured and cleared items which are subjected to excise levy. - The matter has to go back to the Original Authority for a clear finding - appeal allowed by way of remand. - Excise Appeal No. 51684 of 2017 - Final Order No. 50618/2018 - Dated:- 13-2-2018 - .....

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confectionary to the customers in their restaurants. The dispute in the present case is with reference to non-payment of Central excise duty on pastry, cakes, biscuits, cookies, chocolates etc. cleared by the appellant during the financial year 2003-2004 to 2005-2006. The Revenue held a view that since the appellants were engaged in preparing variety of food items using meat, vegetables, pulses etc. and these items being exempted from payment of Central excise duty, while calculating the aggrega .....

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tion 11AC of the Central Excise Act, 1944. 2. The learned Counsel appearing for the appellant submitted that for levy of excise duty an article must be goods and such goods must be excisable under heading listed in the Central Excise Tariff Act. The lower authorities erred in holding that cooked food is covered under Chapter 16 to 20 of the Tariff without providing specific tariff heading under which food cooked in the kitchen is liable for duty. The learned Counsel submitted that the lower auth .....

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ed item as they do not have shelf life and are not marketed as commonly understood. The chapter heading which were relied on by the lower authorities were mainly meant for preserved and packed food that were sold from the shelf having considerable shelf life. The food cooked by the appellant in the kitchen is on specific orders. These cannot be sold to anybody. These food items prepared without any preservative cannot be sold in the open market over the counter. Hence, the test of marketability .....

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d is known in the market. The claim of the appellant that cereals, pulses, chicken, fish and vegetable do not undergo any change to become a new edible food product is factually incorrect. It is nobody case that the chicken/meat is similar to the cooked chicken curry. These are not inter-changeable items and are not emerging on reversible process. Upon cooking or preparation by adding various ingredients in required proportion and undergoing specified preparation process the end product is certa .....

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oduct. The fact that listed menu items and various specific food preparations were made and were given to another person who consumes the same clearly shows that there is a market and there is a duration of existence of shelf life for the said product. Accordingly, the learned AR supported the findings of the lower authorities. 5. We have heard both the sides and perused the appeal record. On the main issue regarding the excisability of various food preparations made in the kitchen of the appell .....

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ent duration of preparation requiring heating, boiling and various other processes will certainly result in the new identifiable and marketable prepared food. The test laid down by the Hon ble Supreme Court in Delhi Cloth and General Mills Co. Ltd. (supra) case is fully satisfied in such situation. The duration of shelf life by itself will not decide the marketability or excisability. This has been a well settled principle by the Apex court. What is needed is to see whether a new, commercially i .....

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