Custom, Excise & Service Tax Tribunal
Shines Resorts And Hotels Private ... vs Commissioner Of Central Excise, ... on 14 July, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: E/366/2007-DB [Arising out of Order-in-Appeal No. 12/2007-CE & 13/2007-CE dated 27/02/2007 passed by the Commissioner of Central Excise, Customs & Service Tax, Cochin] For approval and signature: HON'BLE SHRI S.S GARG, JUDICIAL MEMBER HON'BLE SHRI ASHOK K. ARYA, 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? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? Yes 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes Shines Resorts and Hotels Private Limited P.B. No. 5, Pandalam, Pathanamthitta (Dt.) Appellant(s) Versus Commissioner of Central Excise, Customs & Service Tax C.R. Building, I.S. Press Road, Kochi 682 018 Respondent(s)
Appearance:
Shri Manoj Pillai, Advocate TAXAIDE, TC 25/2828, Hrishikesh, Mathrubhoomi Road, Trivandrum 695 035 For the Appellant Shri J. Harish, AR For the Respondent Date of Hearing: 05/07/2016 Date of Decision: 14/07/2016 CORAM:
HON'BLE SHRI S.S GARG, JUDICIAL MEMBER HON'BLE SHRI ASHOK K. ARYA, TECHNICAL MEMBER Final Order No. 20553/2016 Per: S.S GARG The present appeal is directed against the order of the Commissioner (Appeals) vide which the learned Commissioner remanded the matter for re-quantification of the duty demand by the lower authorities. Briefly the facts of the present case are that the appellants are running a Restaurant and Bakery in which coffee, tea, fruit juices and ice creams are served. The appellant also used to sell the bakery products to the customers who want to take their items to their home. In the restaurant bread was exhibited in the glass showcase in packed condition, while other items like bun, cake and pastry were kept in the glass showcase in an unpacked condition. When the customers order for items for eating in the restaurant they were supplied in plates, without any packing and if the customers order for bread, bun, cakes and pastry not for consumption inside the restaurant but for taking home, they were supplied in cardboard boxes. There were separate cardboard boxes with two types of brand name affixed on them. The cardboard boxes showing the brand name of HOT BREAD were used for packing bread and bread items while cardboard boxes showing the brand name of Shines were used for packing cakes and pastries. The appellant had entered into an agreement with M/s. Oriental Cuisines, Chennai (who are owners of the brand name HOT BREAD) for using the brand name Hot Bread for the bread manufactured by the appellant. The use of the brand name was restricted to bread. On 11.02.2000 Central Excise Officers had seized four pieces of Vanila pastry from a person who was coming out of the restaurant with a carry bag on which the name Hot Bread was printed. Thereafter a show-cause notice was issued demanding an amount of Rs. 7,19,194/- (Rupees Seven Lakhs Nineteen Thousand One Hundred and Ninety Four only) towards duty on cakes and pastries for the period 27.08.2000 to 15.02.2002. After taking reply from the appellant, the adjudicating authority confirmed the demand for Rs. 6,20,556/- (Rupees Six Lakhs Twenty Thousand Five Hundred and Fifty Six only) and imposed an equal amount of penalty. While quantifying the duty liability, the adjudicating authority took the entire receipt as cum-duty. Thereafter appellant filed the appeal before the Commissioner who dispose of the appeal by remanding the case for de novo adjudication. Aggrieved by the impugned order passed by the Commissioner (Appeals), the appellant has filed the present appeal.
2. The learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed in violation of the principles of natural justice and without finding sufficient evidence regarding the use of brand name of Hot Bread used by the appellant for bread items only. He further submitted that on account of wrong understanding by the Revenue the entire products have been segregated and classified as cakes and pastries and the total duty has been worked out and the instant demand has been raised. He further submitted that the entire case has been built on the basis of seizure from one person who was carrying two boxes with four pieces of pastries only and the Revenue has not done proper investigation and has not properly quantified the demand.
3. On the other hand the learned AR reiterated the findings of the Commissioner and submitted that the learned Commissioner has rightly remanded the case back to the lower authority for re-quantification of the demand. He further submitted that instead of going to the adjudicating authority the appellant has wrongly filed the present appeal which is not maintainable in law.
4. Heard both sides and perused the records. On careful consideration of the material on record, we find that the Commissioner (Appeals) in the impugned order has held that the cakes and pastries manufactured and cleared with the brand name Hot Bread would be chargeable to duty. Further the learned Commissioner finally remanded the matter back to the adjudicating authority on the allegation of the appellant that the entire quantity of sales in the restaurant where the customers eat the food cannot be treated as value of the cakes and pastries with the brand name of Hot Bread. Learned Commissioner directed the lower authority to re-quantify the duty demanded after allowing the admissible deduction for the sales effected in the restaurant.
4.1. The appellant instead of going before the lower adjudicating authority as per the impugned order, filed the present appeal challenging the impugned order on the ground cited surpa. The learned AR submitted that on merit appellant has no case but he has no objection if the case is remanded back to the adjudicating authority in the light of the order passed by the Commissioner (Appeals).
5. After considering the submissions from both the sides, we think it appropriate to direct the appellant to approach the lower adjudicating authority for re-quantification of the demand. The appellant is directed to produce all the documents before the adjudicating authority and the adjudicating authority after considering the documents produced by the appellant, especially regarding his submission that entire products have been segregated and classified as Cakes and pastries and instant demand has been raised, if any, will pass a speaking order in accordance with law. Consequently the appeal is allowed in above terms by way of remand.
(Order pronounced and dictated in open court) (ASHOK K. ARYA) TECHNICAL MEMBER (S.S GARG) JUDICIAL MEMBER iss