Marketing Co. Pvt. Ltd Vs. Commissioner of Central Excise, New Delhi  Insc 217 (19 February 2008)
Bhan & J.M. Panchal
O R D
appellant carries out the activities of processing dry fruits, peanut and are
also carrying out activities of clearance of wheat dalia, rice flips, roasted
and spiced channa and channa dal which are being cleared in different pouches
bearing brand name 'Yum'Yum' and 'SKB' which are packed cartons.
the appellant had not disclosed the material facts of the manufacture of
excisable goods in any manner to the Department with an intent to evade central
excise duty, a show cause notice dated 24.4.1998 was issued to the appellant.
After the reply having been filed by the appellant, the Additional Commissioner
vide Order in Original No.81/98 dated 24th December 1998 confirmed the demand
of central excise duty; imposed penalty besides confiscating the seized goods
and ordered redemption of goods on payment of redemption fine of Rs.35,000/- in
lieu of confiscation. The Addl. Commissioner also imposed a penalty of Rs.15,000/-
on Sh. Sudhir Kumar, Director of the appellant-company. The appellant, being
aggrieved, filed an C.A.No.4549/02 (Contd.) - 2 - appeal before the
Commissioner (Appeals) which was rejected vide order dated 12th February 2001.
appellant thereafter filed an appeal before the Tribunal on the grounds, inter alia,
that the activities carried on by the appellant did not amount to manufacture;
that the products remained nuts and are not known by any other name in the
trade parlance and, therefore, it cannot be held that they were subjected to
any preparation which may bring them into the mischief of duty of excise. The
Tribunal negatived the plea raised by the appellant and confirmed the order in
original but reduced the amount of penalty.
dissatisfied by the order of the Tribunal, the appellant has filed the present
appeal. This Court entertained the appeal and issued notice only insofar as
peanuts, pista, cashewnuts and almonds are concerned. The appeal was not
entertained as regards other items. This appeal was ordered to be tagged with
other connected appeals. Thus, the appeal was listed along with C.A.No.2215 of
2002 and other appeals involving similar question. However, since the counsel
for the appellant was not present on the date of hearing, the present appeal
was de-linked and the connected appeals were disposed of by a judgment dated
07th February 2008 in the case of Commissioner of Customs & Central Excise,
Goa v. Phil Corporation Ltd. reported in 2008(2) SCALE 260 = JT 2008(2) SC 239.
By the said judgment, C.A.No.2215 of 2002 filed by the C.A.No.4549/02 ....
(Contd.) - 3 - Revenue was allowed and the appeals filed by the assessees were
dismissed. In C.A.No.2215 of 2002, the Tribunal had taken a contrary view than
the one taken by the Tribunal in the present case. In that case it was held by
the Tribunal that the similar activities carried on by the assessee did not
amount to manufacture. Hence, the products in question were not chargeable to
duty. This Court, by the aforementioned judgment, has reversed the order of the
Tribunal and has held that the activities carried on by the assessee amounted
to 'manufacture' and that the products in question were classifiable under
Chapter 20 of the Central Excise Tariff Act and accordingly set aside the order
passed by the Tribunal and allowed the appeal filed by the Revenue.
the products involved in the present case are similar to those in the case of
Phil Corporation Ltd. (supra), following the said decision, we dismiss the
present appeal filed by the assessee as the order of the Tribunal herein is in
conformity with the aforementioned decision of this Court.