Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise, Mumbai ... vs M/S. Dodsal Corporation Pvt. Ltd on 3 February, 2011
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT NO. II
APPEAL NO. E/86/09 Mum
(Arising out of Order-in-Appeal No. YG (731-732)27-28/MV/2008 dated 31.10.08 passed by the Commissioner of Central Excise (Appeals), Mumbai)
For approval and signature:
Shri. Ashok Jindal, Member (Judicial)
Shri. P.R. Chandrasekharan, Member (Technical)
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 :
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?
Commissioner of Central Excise, Mumbai V
:
Appellant
Versus
M/s. Dodsal Corporation Pvt. Ltd.
Respondent
Appearance Shri N.A. Sayyad, JDR for appellant Shri V.S. Sejpal, Advocate For Respondent CORAM:
Shri. Ashok Jindal, Member (Judicial) Shri. P.R. Chandrasekharan, Member (Technical) Date of Hearing : 01.02.2011 Date of Decision : 01.02.2011 ORDER NO.
Per : P.R. Chandrasekharan This is a departmental appeal filed against the Order-in-Appeal No. YG (731-732) 27-28/MV/2008 dated 31.10.2008 passed by the Commissioner of Central Excise (Appeals), Mumbai.
2. The issue relates to classification of non-vegetable pizza and chicken wings i.e. whether it is classifiable under Heading 1601.10 of Central Excise Tariff Act, 1985 as sausages and similar products of meat, meat offal or blood; food preparations based on these products attracting duty of 16% or under Heading 19.05 as Bread, pastry, cakes, biscuits and other bakers wares, whether or not containing coca; communion wares, empty cachets of a kind suitable for pharmaceutical use, sealing wafers, rice paper and similar products attracting nil rate of duty. The respondents in this case are M/s. Dodsal Corporation Pvt. Ltd., the manufacturers of pizzas and chicken wings. The departments view is that the non-vegetable pizzas manufactured by the assessee are preparations of meat put up in unit container and bears the brand name of Pizza Hut and are classifiable under Chapter Heading 1601.10 of CETA, 1985 attracting duty of 16% ad valerom. Accordingly, they demanded a duty of Rs. 13,18,349/-. The case was adjudicated by the Joint Commissioner of Central Excise, Mumbai vide order-in-original No. 421-423/31-33/V/2007/JC/KNP dated 28.12.2007 who confirmed the classification of the product under Heading 1610.10 of CETA, 1985 and also confirmed the duty demand along with interest thereon. The adjudicating authority further imposed a penalty of Rs.13,18,349/- on the assessee under Section 11AC of the Central Excise Act, 1944. The party went in appeal before the Commissioner (Appeals) who, in turn, after considering the case, held that non-veg pizzas and chicken wings cannot be classified under Chapter Heading 1601.10 and they are rightly classifiable under Heading 19.05 of CETA, 1985. He also held that the cardboard box in which the pizza is placed for customer to take away cannot be treated as a unit container where a manufacturer pre-determines the product, the quantity and the price at which he intends to sell. He further observed that the pizzas are made-to-order depending upon the choice of the customer who may opt for various toppings and pizzas so prepared as per the customer choice are put in a card board box for take away purposes. In support of his contention, the Commissioner (Appeals) placed reliance on the decision of the Tribunal in the case of CCE vs. Shalimar Super Foods 2007 (210) ELT 695 (Mum.).
3. M/S. Dodsal Corporation Pvt. Ltd., the respondent submits that the issue has already been decided in their favour, in their own case by this Tribunal as reported in 2011 (263) ELT 719. In the said case, it was held that the Pizzas involved were not covered under Chapter Heading 1601.10 during the period prior to 1.3.2005 and they were covered by Notification No. 3/2005-C.E dated 24.2.05 for the period after 1.3.05. It was also held that the paper carton in which pizza was packed and given to customer cannot be treated as unit container which connotes packages of a predetermined quantity which is indicated on the container. As regards chicken wings the Tribunal found that they were not covered by Chapter Heading 160110 and were eligible for exemption under Notification 3/05-CE dated 24.02.2005 for the period after 1.3.05. Accordingly, the Tribunal set aside the demand made in that case. The facts of the present case are identical to that already decided by this Tribunal and pertain to the very same party. Respectfully following the ratio decided in that case, we reject the departmental appeal.
(Pronounced in open Court) (Ashok Jindal) Member (Judicial) (P.R. Chandrasekharan) Member (Technical) nsk 4