TaxTMI 
TaxTMI 
2009 (11) TMI 716
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....l exemption from payment of duty under Sl. No. 14 of the Notification No. 6/2002-C.E., dated 91-3-2002 as amended. Entry Sl. No. 14 of the Notification provides exemption to the products like 'Sweetmeats (known as Misthans or Mithais or by any other name), Namkeens, Bhujia, Mixture, Chabena and similar other edible preparations in ready for consumption form. Although the products manufactured by the assessee are classifiable under Chapter sub heading 2108.99 (presently 21069099) of the Central Excise Tariff Act, 1985, they did not appear to be covered within the scope of the above Notification as it did not appear to be products similar to those specified in the Notification ibid in as much as the impugned products to be pre-heated in an oven or to be dipped in hot water for 3 to 5 minutes before serving unlike those specified in the Notification which are in ready to eat form. Hence, the exemption claimed by the assessee appeared to be incorrect. A Show Cause Notice was issued to the assessee vide C. No. V/21/15/154/2005 C.1(Sl No. 146/2005) dated 5-12-2005, asking them to show cause to the Commissioner of Central Excise, Bangalore-I Commissionerate, Bangalore, as to : (i) ....
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....before the adjudicating authority that earlier show cause notices dated 28-11-2000 and 28-6-2001 on the same subjects were adjudicated by the Dy. Commissioner and he dropped the proceedings. It was their submission that principle of res-judicata will apply in this case. The adjudicating authority after granting an opportunity of personal hearing and considering the oral and written submissions, came to the conclusion that the appellants are not eligible for the benefit of Sl No. 14 of Notification No. 6/02 C.E., dated 1-3-02 in respect of 84 edible preparations as indicated in the OIO. Coming to such a conclusion the adjudicating authority confirmed the demand of duty and sought to collect the interest as per the law but did not impose any penalty on the appellants. 4. Learned counsel appearing on behalf of the appellant draws our attention to the findings in the OIO. His main line of arguments are summarized as follows : (I) The 45 Ready-to-Eat preparations held to be entitled to the exemption are given in Table-I of internal page No. 6 of the impugned Order-in-Original. The remaining 85 edible preparations in respect of which the exemption has been are listed in Ta....
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....ed to exemption in the earlier proceedings, whereas, the impugned order takes an opposite stand. The remaining Ready-to-Eat rice preparations appearing at Sl. No. 29-3 5 are all belonging to the same class as either Bisi Bele Bath or Pongal. Further, frozen masala dosa, frozen rava idli, frozen chutney, frozen potato sagu etc. were all considered to be entitled for exemption under the earlier proceedings, whereas, all these Ready-to-Eat preparations have been denied by the present proceedings. The appellants submit that the entry in the Notification has remained unchanged from the earlier proceedings and there has been no change in the factual position excepting a few items, that too of a same class into the product category. The appellants submit that once the department has examined the items in question and subject it to a proper adjudication proceedings and come to a conclusion that the user had indeed entered to the exemption in question, it would not be open to the department to reopen the same dispute, that too after having accepted the earlier order. In this regard, the appellants rely on the following decisions : (i) Birla Corporation....
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.... based genus as also to a narrower genus, there is no principle that the general words should be confined to the narrower genus. Applying the above tests of application of the rule of ejusdem generis, the appellants submit that sweetmeats, by themselves constitute a separate class, namkeens constitute a separate class and bhujia, mixture and chabena similarly constitute a separate class of eatables. In this situation, the principles of ejusdem generis cannot be applied. Insofar as application of the Rule noscitur a sociis is concerned, Justice G.P. Singh has stated that this rule is wider than the rule of ejusdem generis and cannot be applied in cases where it is 'clear that wider words have been deliberately used in order to make the scope of the defined word correspondingly wider. The appellants therefore submit that the application of the Rule of ejusdem generis and noscitur a sociis by the lower authority is not sustainable. Reliance is placed on the following decisions : (a) Hamdard Dawakhana Wakf v. UOI - AIR 1995 SC 1167 (b) CCE v. Protein Products of India Ltd. - 1989 Supp (1) Supreme Court Cases 729 Alternatively, the rule of ejusdem generi....
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....such as bhujia chabena NIL 25 (iii) 4/93-C.E., dated 28-2-1993 Papad, idli-mix, Vada-mix, dosa-mis, jalebi-mix, gulabjamun-mix, or namkeens, such as bhujyia. chabena NIL 21 (iii) 2/94-C.E., dated 1-3-1994 Papad, idli-mix, vada-mix, dosa-mix, Jalebi mix, gulabjamun-mix, or namkeens, such as bhujiya, chabena NIL 15A 70/95-C.E., dated 16-3-1995 papad, idli-mix. vada-mix, dosa-mix, jalebi-mix, gulabjamun-mix, or namkeens such as bhujyia, chabena NIL 21.2 8/96-C.E., dated 23-7-1996 The following goods, namely :- (i) Soya textured protein, soya yoghurt, soya tofu, soya bassed food preparations for infants use, soya milk powder, soya noodles, soya macaroni and soya temph. whether or not containing other food ingredients not containing cocoa; (ii) Papad, idli-mix, vada-mix, dosa-mix, jalebi-mix, gulab-jamun-mix, namkeens such as bhujiya, chabana; and (iii) Sweet meats and snacks NIL 5. 5/98-C.E., dated 2-6-1998 Sweetmeats (known as 'misthans' or 'mithai' or by any other name), namkeens, bhujia, mixture, chabena and similar edible preparations in ready for consumption form, if manufactured in a 'factory'. Explanation : ....
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....ment as evident from the Order-in-Original dated 19-10-2001 passed by the Deputy Commissioner. From the legislative history and the earlier departmental clarification, it is clear that it was never the intention of the Government to subject Ready-to-Eat package foods to excise duty and therefore, the finding of the lower authority that the expression 'similar' should be read with the class of foods such as sweetmeats, namkeehs, bhujia, mixture and chabena and not with edible preparations in ready for consumption form is clearly unsustainable. The word 'similar' is only to qualify the expression 'edible preparation' and indicate that the said preparation is not to be prepared or processed further but is to be consumed as such or if to be consumed hot, to be heated and used. The argument of the Commissioner that that the items in question are not taken as an anytime snack is factually incorrect for a number of items like samosa, dosa etc. Further the contention that Namkecn etc. are dried items, but the item in question 'are not again is not relevant so long as they are edible preparation. The further contention that snacks are taken as such whereas the goods in question cannot....
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....pter 20 4. Frozen - Chandrahara 6 x 50g 55 RTE - Kesaribath 24 x 300g 5 Sweetmeat By notification RTE - Kesaribath 48 x 300g 6 The appellants submit that the number of items in table 2 of the impugned order would come down substantially if the above items are added to table 1 related to goods classifiable under Chapter 20. 5. Learned SDR on the other hand would draw our attention to the findings recorded by the adjudicating authority. She would submit that in the previous proceedings wherein the benefit of Notification No. 6/2000 was accorded to the appellants, there were only 28 items while in the current proceedings there are 84 items which are not the same. 5.1 It is her submission that since there is an increase in the number of products, revenue took a view that the benefit of Notification is not applicable. It is her submission that principle of resjudicata will not apply in respect of tax matters. It is also her submission that it is a settled law that perpetuation of wrong assessment 'cannot be continued. 5.2 It is also her submission that the benefit of Entry ....
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.... Notification No. 6/02 for the items manufactured by the appellant. 8. It is undisputed that the items in question (numbering 84) are edible preparations and are an extension of the items manufactured by the appellants earlier. 9. It is also undisputed that the process of manufacturing by the appellants of the product remains the same but for little improvement in the technology of packing. 10. It is also undisputed that the appellants were marking the said products 'ready to eat' form and claiming it so in all their advertisements. 11. We find that the issue in this case can be settled on only one point of 'res judicata'. We find that in an identical issue for an earlier period i.e. from April 2000 to April 2001, the appellants were issued show cause notices. The said show cause notices were contested by the appellant before adjudicating authority. Deputy Commissioner of Central Excise vide OIO No. 63/01 dated 19-10-2001, decided the general exemption granted to the appellants under Sl. No. 8 of Notification No. 8/01 dated 1-3-2000 & Sl. No. 14 of Notification No. 8/01 dated l-3-01. The exemption granted in those notification reads as under : ....
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.... 37 (S.C.) (4) CCE v. Amar Bitumen & Allied Products Pvt. Ltd., 2006 (202) E.L.T. 213 (S.C.) (5) Boving Fouress Ltd. v. CCE, 2006 (202) E.L.T. 389 (S.C.) (6) CC v. ITC Ltd., 2006 (204) E.L.T. 363 (S.C.) (7) CCE v. Novapan Industries Ltd., 2007 (209) E.L.T. 161 (S.C.) (8) Jyothy Laboratories Ltd. v. CCE, 2007 (978) RLT 276 (CESTAT-Ban) (9) CCE Allahabad v. Surcoat Paints (P) Ltd., 2008 (232) E.L.T. 4 (S.C.) has clearly settled the law, that by non-challenge of an order in an identical issue, revenue is precluded from challenging the similar order passed, even if it is in respect of another unit. In the case before us we find that the revenue has not challenged the order which was passed in the appellant's own case earlier. Hence the ratio of the decision of the Apex courts as herein above reproduced will clearly cover the issue in favour of the appellant as there is nothing on record to show that there was a change of the facts. 16. The change of facts as canvassed by the learned SDR that the items manufactured ....