Custom, Excise & Service Tax Tribunal
M/S Prerna Fast Food vs Commissioner Of Central Excise, ... on 18 April, 2011
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT AHMEDABAD
COURT NO. II
Application No. E/COD/847 to 849/10 in Appeals No. E/661 to 663/10
E/S/797 to 799/10
(Arising out of Order-in-Appeal No. SB(71 to 76) 71 to 76/MV/2009 dated 21.10.2009 passed by the Commissioner of Central Excise (Appeals), Mumbai-I ).
For approval and signature:
Honble Shri B.S.V. Murthy, Member (Technical
Honble Shri Ashok Jindal, Member (Judicial)
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1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2. Whether it should be released under Rule 27 of the : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordships wish to see the fair copy : Seen of the order? 4. Whether order is to be circulated to the Departmental : Yes authorities? ====================================================== M/s Prerna Fast Food M/s Prerna Food Services Smt. Pawan Bedi Appellants Vs. Commissioner of Central Excise, Mumbai-I Respondent Appearance: None for Appellant Shri A.R. Prabhakar JDR for Respondent CORAM: SHRI B.S.V. MURTHY, MEMBER (TECHNICAL) SHRI ASHOK JINDAL, MEMBER (JUDICIAL) Date of Hearing: 18.04.2011 Date of Decision: 18.04.2011 ORDER NO. WZB/MUM/2011 Per: Ashok Jindal
The appellants have filed these appeals alongwith stay applications and applications for condonation of delay in filing the appeals. The stay applications and applications for condonation of delay are listed today for hearing.
2. None appeared on behalf of the appellants nor any requests for adjournment were received. It was felt that the matter can be disposed of at this stage, therefore, the appeals are taken up for disposal.
3. After going through the case records, we find that the reason for causing delay in filing the appeal was stated by the appellants that a common Order-in-Appeal was passed against two Orders-in-Original and the appellants filed one appeal before this Tribunal. On pointing out the defect by the Registry, the appellants filed these appeals which caused the delay in filing the appeals by 72 days. Taking note of that, the reason for causing delay in filing the appeals is satisfactory, therefore, the delay is condoned. Accordingly, the applications for condonation of delay in filing the appeals are allowed.
4. Further, we have gone through the records of the case and found that the short issue involved in this case is whether the Pizza manufactured by the appellants is classifiable under Chapter 19 as classified by the appellants or as classifiable under Chapter 16 as department sought to classify.
5. The facts of the case are that the appellants namely M/s Prerna Food Services and M/s Prerna Fast Food are engaged in the business of the sale of Pizza in the Brand name of Smokin Joes. The appellants have manufactured non-vegetarian pizzas prepared from flour and sought to classify under Chapter 19. However, the Revenue has held that as the percentage of topping used by the appellants is more than 20%, hence the goods are classifiable under Chapter 16. Therefore, a show-cause notice was issued, which was adjudicated and it was held that the impugned goods are classifiable under Chapter 16. The duty demand confirmed and penalties were also imposed on the appellants. Aggrieved from the said decision, the appellants are before us.
6. Heard the learned JDR.
7. On careful examination of the issue before us, we find that the said issue has been settled by this Tribunal in the case of Dodsal Corporation Pvt. Ltd. Vs. Commissioner of Central Excise, Bangalore 2011 (263) ELT 719 (Tri-Bang), wherein this Tribunal has held that Pizza cannot be brought under sub-heading 1601.10 for the reason that pizza has a topping of chicken along with other ingredients. It was held that 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. Therefore, it was held that the pizza cannot be classified under Chapter 16 of the Central Excise Tariff Act, 1985. Same view was taken by this Tribunal in the case of CCE, Mumbai-V Vs. Dodsal Corporation Pvt. Ltd. vide Order No. A/124/2011/EB/C-II 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.
8. As discussed above, the issue has already attained finality that the Pizza having toping of chicken is not classifiable under Chapter 16 of the Central Excise Tariff Act, 1985. Therefore, the impugned orders are set aside and the appeals are allowed with consequential relief, if any.
(Pronounced in Court)
(B.S.V. Murthy) (Ashok Jindal)
Member (Technical) Member (Judicial)
Vks/
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