2011 (2) TMI 1084 - AT - Central Excise

Commissioner (Appeals) classifies 'non-vegetable pizza' & 'chicken wings' under 19.05, not 1601.10, leading to nil duty.

The Commissioner (Appeals) ruled in favor of the respondent, classifying 'non-vegetable pizza' and 'chicken wings' under Heading 19.05 instead of 1601.10, ... Classification of 'non-vegetable pizza' and 'chicken wings' - whether under Heading 1601.10 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 - Held that:- As decided in DODSAL CORPORATION PVT. LTD. Versus COMMR. OF C. EX., BANGALORE [2010 (11) TMI 203 - CESTAT, BANGALORE] 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 the departmental appeal is rejected. Issues:1. Classification of 'non-vegetable pizza' and 'chicken wings' under Central Excise Tariff Act, 1985.2. Whether the products are classifiable under Heading 1601.10 or Heading 19.05.3. Determination of duty rate and applicability of penalties.4. Interpretation of 'unit container' for classification purposes.Detailed Analysis:1. The primary issue in this case pertains to the classification of 'non-vegetable pizza' and 'chicken wings' under the Central Excise Tariff Act, 1985. The dispute revolves around whether these products should be classified under Heading 1601.10 as 'sausages and similar products of meat' attracting a duty of 16%, or under Heading 19.05 as 'bread, pastry, cakes, biscuits' with a nil rate of duty. The department contended that the non-vegetable pizzas are 'preparations of meat put up in unit containers' and should be classified under Chapter Heading 1601.10, demanding duty payment. However, the Commissioner (Appeals) ruled in favor of the respondent, holding that the products should be classified under Heading 19.05 instead.2. The second issue relates to the determination of the duty rate applicable to the 'non-vegetable pizza' and 'chicken wings'. The Joint Commissioner of Central Excise initially confirmed the classification under Heading 1601.10 and imposed a duty demand along with penalties under Section 11AC of the Central Excise Act, 1944. On appeal, the Commissioner (Appeals) overturned this decision, emphasizing that the products should be classified under Heading 19.05, thereby negating the duty demand and penalties.3. In this case, the Tribunal considered the interpretation of the term 'unit container' crucial for classification purposes. The Commissioner (Appeals) highlighted that the cardboard box in which the pizza is placed for takeaway does not qualify as a unit container as it does not pre-determine the product, quantity, and price. The Tribunal's decision in a previous case, CCE vs. Shalimar Super Foods, was cited as precedent to support this interpretation. The respondent argued that a similar issue had already been decided in their favor by the Tribunal in a previous case, and therefore, the departmental appeal should be rejected.4. The final issue addressed the applicability of previous Tribunal decisions to the current case. The respondent, M/s. Dodsal Corporation Pvt. Ltd., referenced a prior ruling by the Tribunal which found that the pizzas and chicken wings were not covered under Chapter Heading 1601.10 and were eligible for exemption under a specific notification. Given the identical nature of the facts and parties involved in the present case to the previous ruling, the Tribunal rejected the departmental appeal, citing consistency with the earlier decision.