TMI Blog2018 (11) TMI 818X X X X Extracts X X X X X X X X Extracts X X X X ..... ners” is that for whole sale clearance from the manufactory the goods have been packed in unit container. We are unable to agree with the reasoning of Commissioner (Appeal) as mode and manner of service in a restaurant cannot determine the leviability to duty. Appeal allowed - decided in favor of appellant. - APPEAL No. E/242/2010 - A/87619/2018 - Dated:- 10-10-2018 - Mrs. Archana Wadhwa, Member (Judicial) And Mr. Sanjiv Srivastava, Member (Technical) Shri Dinesh Agarwal, C.A., for appellant Shri A.B. Kulgod, Assistant Commissioner (AR), for respondent ORDER Per: Sanjiv Srivastava The appeal is directed against the order of Commissioner (Appeal) Central Excise Mumbai Zone -1 dated 16th November 2009. By the said order Commissioner (Appeal) has held as follows: I uphold the classification of the product under sub heading 16010000, the demand of Central Excise duty of ₹ 2,44,927/- under section 11A(1), interest under Section 11AB, penalty of ₹ 2,40,124/= imposed under Section 11AC of the Central Excise Act, 1944, confirmed vide order in original No 86 to 88/19 to 21/AC/GDN dated 30.04.2008 passed by the Assistant Commissioner, Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s only. vi. Since the goods served by them were not put up in unit containers the same were not leviable to Central Excise duty. vii. All the activities were being carried out by them in open and not clandestinely or surreptitiously and hence they were undertaking all the activities in bonafide manner within the knowledge of department. Hence Commissioner (Appeal) was wrong in upholding 100% penalty against them. 4.1 We have heard Shri Dinesh Agarwal C A for the appellant and Shri A B Kulgod Assistant Commissioner, Authorized Representative for the revenue. 4.2 Arguing for the appellant learned C A submitted that- i. Appellant are operating twenty three Restaurants in Maharashtra and Gujarat but the dispute of dutiability pertains to only three outlets. No dispute has been raised in respect of the other outlets even though activity is identical. ii. Issue in the case is that the food preparation of Chapter 16 falling under Section IV of the Central Excise Tariff Act 1985, are subjected to excise duty only when the said goods are put up in unit container and bear a brand name. Appellants use butter paper, paperboard, tray, pouches, paperboard cones or any other pap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e preparation of meat and served in the restaurant of appellants in butter paper, paperboard, tray, pouches, paperboard cones or any other paperboard boxes would merit classification under tariff heading 1601.10 and be subject to duty of excise or otherwise 5.2 The relevant section note, chapter notes and chapter headings along with applicable rates are indicated below: SECTION IV PREPARED FOODSTUFFS; BEVERAGES, SPIRITS AND VINEGAR; TOBACCO AND MANUFACTURED TOBACCO SUBSTITUTES NOTES 1. . 2. In this Section the expression, unit container means a container, whether large or small (for example, tin, can, box, jar, bottle, bag or carton, drum, barrel or canister) designed to hold a predetermined quantity or number. CHAPTER 16 Preparations of Meat, of Fish or of Crustaceans, Molluscs or Other Aquatic Invertebrates 1. .. 2. 3. In relation to products of this Chapter, labeling or relabeling of containers or repacking from bulk packs to retail packs or the adoption of any other treatment to render the product marketable to the consumer, shall amount to manufacture . 4. In this Chapter, brand name means a brand name, whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2007 (211) ELT 607 (T)] the Hon CESTAT while deciding in respect of same edible preparations viz Non Veg Burgers, Non Veg Curry, Curry Pan, Non Veg wraps, Pizza Puffs etc., has held that emergence of a distinctly known commodity from its ingredients are prima facie result of process of manufacture. As regards brand name the products are put up in unit cartons bearing the trade name, brand name and logo of M/s McDonalds Corporation USA and it is also not disputed. As informed by the applicant that they are joint venture Company owned by M/s McDonalds India Pvt Ltd. Which is again a 100% subsidiary of M/s McDonald Corporation of USA and as such the brand name logo is owned by M/s McDonald Corporation and not owned by the appellant. 14 Thus considering all above points it is absolutely clear the appellants product is rightly classifiable under Chapter sub heading 1601.10 of Central Excise Tariff Act, 1985 as claimed by the department and is put up in unit container as described above and as such liable for Central Excise duty. 5.4 The reasoning and decision do not appear to be sound in as much as Commissioner (Appeal) has failed to take the note of the submission that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ities of contents whereas the items cleared by the respondents were not of uniform quantities. For this reason, the goods in question which were cleared in plastic bags not sealed and not containing pre-printed quantities thereon, cannot be treated as unit containers for the purpose of classification of meat articles packed therein under C.E.T. sub-heading 1601.10. Dodsal Corporation Pvt Ltd. Vs Commissioner Central Excise Bangalore [2011 (263) ELT 719 (T-Bang)] 16. For the period prior to 1-3-2005 duty was attracted only when such preparations of meat were put up in unit containers bearing a brand name. For the subsequent period, such goods not put up in unit containers are exempted from payment of duty under Notification No. 3/05-C.E., dated 24-2-2005. We find that in the instant case, the paper carton bearing the logo of Pizza Hut is used mainly for packing and transportation of the pizzas from the outlet to the place where the pizza is consumed. Pizzas are packed in these cartons when pizzas are ordered by the customer for delivery at his residence or when the customer wishes to take away the pizza instead of consuming it at the eatery. The carton itself doe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Corporation Pvt. Ltd. vide Order No. A/124/2011/EB/CII dated 1.2.2011. Therefore, we find that the issue is no more res integra. Hence, after waiving the requirement of pre-deposit, we took the appeal also for final disposal with the consent of the learned JDR. 5.6 During course of arguments learned AR had referred to an earlier order of the this bench Order No A/88555-88558/17/DB pronounced on 20/07/2017 remanding the matter to original adjudicating authority for consideration of the issue of unit container. He had requested that this matter be also remanded back to be decided simultaneously. We are not remanding the matter back, for two reasons that- i. The issue involved is pure question of law which has been settled by the earlier orders of this tribunal and do not require any fresh verification or consideration of facts; ii. The earlier order remanding the matter back was pronounced on 20/07/2017, and even after lapse of more than a year, revenue has not been able to adjudicate the matter in remand proceedings. Thus by remanding the matter the issue which could be decided will be delayed to what extent is not known. Even otherwise matter is more than decade old. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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