TMI Blog2018 (7) TMI 994X X X X Extracts X X X X X X X X Extracts X X X X ..... xtended period of Limitation. Held that:- It appears that the appellants are attempting to create a confusion between ‘nil’ rate of duty and excisability of goods. There is no ambiguity in the wordings of the Notification - the department is in its right to demand duty on these items. Method to arrive at the value of clearances in the previous year in terms of Notification No.8/2003 (as amended) - Held that:- The appellants contentions are misplaced. It appears that the appellants are attempting to create a confusion between ‘nil’ rate of duty and excisability of goods. There is no ambiguity in the wordings of the Notification - The department was correct in calculating the eligibility limit. Extended period of limitation - Held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 21.11.2008. However, on termination of license agreement on December 31, 2008, they are operating in the name and style as The Lalit Ashok, Bangalore . Their application for change of title has been accepted by this Bench order dated 29.5.2018 in E/ROA/2016/2018 and E/Misc./20409/2018 in E/388/2008-DB vide Misc. Order No.20572-20573/2018. 2. The appellants are engaged in the activities of cooking and serving food, providing room accommodation, providing facilities of Banquet Hall, which are standard activities of a Five Star Hotel. The food items are cooked and prepared in the respective kitchens of the Hotel and are served to the customers in the normal utensils/table-wares, simultaneously. These food items are not packed and are n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 018. 5. The counsel for the appellants submitted that as duly observed by the learned Commissioner (A), there are two questions in the present appeal (i) Whether they are entitled to claim clearances of less than rupees Three Crore worth of excisable goods in the previous years; (ii) Whether they are entitled to relief of interest and penalty. Relying on M/s. India Hotels Co. Ltd. vs. ITO, Mumbai Others: (2007) 7 Supreme Court Cases 39, they submitted that in case of preparing food packages or selling the same or preparing foodstuffs for serving in the Hotel, there is no question of manufacture; they also referred to the judgment of Tribunal in Dunar Foods Ltd. vs. Commissioner of Central Excise, Panchakula: 2017 (346) ELT 612 (Tri.-Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Indore: 2017 (348) ELT 297 (Tri.-Del.) (iv) DCM Shriram Industries Ltd. vs. UOI: 2016 (344) ELT 857 (Del.) (v) Designing Cell vs. CCE, Bhopal: 2015 (38) STR 181 (Tri.-Del.) (vi) CCE, Raipur vs. Uday Sponge and Power Ltd.: 2011 (264) ELT 241 (Tri.-Del.) (vii) Mahila Griha Udyog Lijjat Papad vs. CCE, Mumbai-VI: 2002 (149) ELT 502 (Tri.-Mum.) (viii) Chemicals and Fibres of India Ltd. vs. CCE, Bombay: 1988 (33) ELT 55 (Tri.-Del.) 5.2 The counsel for the appellants submitted that as they have provided all the requisite information asked by the Department, larger period cannot be invoked on the basis of audit points. They placed reliance on the following: (i) Reliance Infratel Limited vs. CCE: 2016 (42) STR 452 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td.: 2010-TIOL-431-HC-KAR-CX. 6. Learned Departmental Representative has reiterated the findings of Order-in-Original and stated that the appellants are confused between excisability and exemption. The items they manufacture are finding mention in Central Excise Tariff and are covered by HSN notes. In terms of Notification No.82/003, they are required to take the value of all excisable goods, even if exempted, for the purposes of calculation of the previous year s clearance to ensure that they did not exceed ₹ 300 lakhs. The case of Bharat Hotels Ltd. vs. CCE: 2018-TIOL-178-HC-DEL-ST cited by the appellants is not applicable as it was delivered in the context of Income Tax Law. The department has rightly demanded duty and pastry i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artment is in its right to demand duty on these items. We find that the ratio in the case of Bharat Hotels Ltd. cited supra is not applicable. 7.2 Regarding the method to arrive at the value of clearances in the previous year in terms of Notification No.8/2003 (as amended), we find that the appellants contentions are misplaced. It appears that the appellants are attempting to create a confusion between nil rate of duty and excisability of goods. We find there is no ambiguity in the wordings of the Notification. We find that the ratio of judgment of this Bench in the case of Arun Industries: 2005 (191) ELT 1041 (Tri.-Bang.) is squarely applicable. The department was correct in calculating the eligibility limit. 7.3 Coming to the last ..... X X X X Extracts X X X X X X X X Extracts X X X X
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