Custom, Excise & Service Tax Tribunal
Kali Aerated Water Works (Madurai) vs Commissioner Of Central Excise, ... on 1 February, 2011
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
Appeal No.E/454/2004
[Arising out of Order-in-Appeal No.487/2003 dt. 19.12.2003 passed by the Commissioner of Central Excise (Appeals), Madurai]
Appeal No. E/455/2004
[Arising out of Order-in-Appeal No.47/2004 dated 20.2.2004 passed by the Commissioner of Central Excise (Appeals), Madurai]
For approval and signature:
Honble Ms. JYOTI BALASUNDARAM, Vice-President
Honble Dr. CHITTARANJAN SATAPATHY, Technical Member
1. Whether Press Reporters may be allowed to see 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
CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? :
3. Whether the Members wish to see the fair copy of
the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
Kali Aerated Water Works (Madurai)
Appellant/s
Versus
Commissioner of Central Excise, Madurai
Respondent/s
Appearance :
Ms.Pramila Viswanathan, Advocate Shri T.H.Rao, SDR For the Appellant/s For the Respondent/s CORAM:
Honble Ms. Jyoti Balasundaram, Vice-President Honble Dr. Chittaranjan Satapathy, Technical Member Date of hearing : 1.2.2011 Date of decision : 1.2.2011 Final Order No.____________ Per Jyoti Balasundaram The above appeals involve a common issue viz. benefit of exemption from payment of duty in terms of Sl.No.15 of the Table to Notification No.6/2002-CE dt. 1.3.2002 to aerated waters (Bovonto quality) supplied by the assessees to vending machines covering different periods, and are hence heard together and disposed of by this common order.
2. We have heard both sides. Sl.No.15 of the Table to the notification covers aerated waters prepared and dispensed by vending machines. The claim to the benefit is made on what is supplied in canisters to the vending machines in which Carbondioxide is added and aerated water comes into existence and is dispensed through the vending machines. In the light of the clear language of Sl.No.15, assessees have no case for exemption for the goods supplied to the vending machines which is nothing but soft drink concentrate. The argument that what is supplied in canisters to the vending machines is in semi-finished form and is not capable of being marketed also cannot be accepted for the reason that not only are the assessees paying sales tax thereon but for the reason that M/s.Pepsico who is supplying semi-finished drinks for use in vending machines are paying excise duty by classification under CET sub-heading 2108.16. We also note that there is a CBEC Circular No.439/5/99-CX dt. 8.2.99 which clarifies that all preparations for lemonades or other beverages for use in the manufacture of aerated water, generally known as soft drink concentrate/beverage bases are correctly classifiable under CET sub-heading 2108.10.
3. In the light of above discussion, we hold that the benefit in terms of Sl.No.15 of the notification is not admissible to the goods in question, uphold the impugned orders and reject the appeals.
(Dictated and pronounced in open court)
(Dr. CHITTARANJAN SATAPATHY) (JYOTI BALASUNDARAM)
TECHNICAL MEMBER VICE-PRESIDENT
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