AI Drafter 
TaxTMI 
TaxTMI 
2017 (9) TMI 72
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....elling edible goods in retail namely Preparation of Meat, Preparation of Vegetable and Preparation of Chocolates, which were proposed to be classified under Chapter Sub-heading 1601.10, 2001.10 and 1803.00 respectively of the Central Excise Tariff Act 1985. After detailed investigation by the departmental officers show cause notices were issued, wherein it was alleged that the goods manufactured and sold by the various restaurants of the appellants are manufactured goods and classifiable under the chapter sub-heading as proposed above; that the goods are sold in the unit containers, which are bearing the brand name, logo and trade name of McDonald's, accordingly it is liable for Excise duty. The adjudicating Authority decided the classifica....
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....ded time 10. Whether the imposition of penalty is justified; and 11. Whether duty is correctly computed. At the outset, he submits that appellant are operating 23 Restaurants in Maharashtra and Gujarat but the dispute of dutiability pertains to only 3 outlets. No dispute has been raised in respect of the other outlets even though activity is identical. This Act of the Revenue clearly indicates that the Revenue itself is not sure the activity of the Appellant is dutiable. Therefore on the principle of equity itself, the demand should not sustain. He submits that as per Revenue the main issue in the case is that the food preparation of Chapter 16 and 20 falling under Section IV of the Central Excise Tariff Act 1985, are subjected to ....
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....tral Excise 2011 (263) ELT 719 (Tri-Bang.) (v) Agro Food Punjab Ltd. Vs Commissioner of Central Excise 1990 (49) ELT 404 (Tribunal). He submits that in view of the above judgments the following essential conditions must be satisfied for any container to be a 'Unit Container': (a) It must be an enclosed receptacle which can be used for storage and transportation article; (b) The container must be sealed; and (c) A pre-determined quantity which it is designed to hold must be indicated on the container. He submits that the above 3 criteria are not fulfilled in the fact of the present case as the butter paper, paperboard, tray, pouches, paperboard cones or any other paperboard boxes used by the appellant for serving the edible....
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....of the impugned order. As regard the main issue that whether the edible foods product sold by the appellant is in 'unit container' or otherwise, he refers to the definition of 'container' provided under the 'Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act. 1992' and 'Seeds Act, 1966.' He submits that as per the definition of container provided in the above Act, the container used by the appellant for selling of their edible food preparation qualifies the term 'unit container' accordingly the goods are liable to excise duty under the classification of CSH 1601.10 and 2001.10. 4. We have carefully considered the submissions made by both the sides. We find that the larger iss....
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....that these printed boxes can hold only unit sale of goods. 33.5 A unit container by definition under Section IV of the Central Excise Tariff Act, 1985 would mean a container whether large or small (for example tin, can, box, jar, bottle, bag or carton, drum, barrel, or canister) designed to hold a pre-determined quantity or number. There is no mention in the Section Note that the pre-determined quantity or number is required to be mentioned on the container. Hence their argument that the containers do not bear any indication of the quantity or the weight of the goods and cannot therefore be treated as being designed to hold a predetermined quantity, is not tenable. It was also argued that the purpose of wrapping is not to pack food in an....
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....sue Supreme Court in the case of Commissioner of Central Excise, Trichy V/s. M/s. Grasim Inds.[2005.TIOL.69,SC.CX.LB] has, inter alia, observed "...There would be no purpose in indicating the Foreign Company's name in relation to the products except to indicate a connection between the product and the Foreign Company...". 33.7 Their argument that the goods are not displayed in unit container for sale is not relevant for the purpose of determining the scope of Chapter Sub-heading No.1601.10. Such qualification of display and sale do not find any mention in the tariff Sub-heading 1601.10, which only reads as, 'Preparations of meat, of fish or of crustaceans, molluscs or other aquatic invertebrates, including sausages and similar pr....