2018 (2) TMI 919

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.... for rent and also various food items, cakes, pastries, cookies, confectionary to the customers in their restaurants. The dispute in the present case is with reference to non-payment of Central excise duty on pastry, cakes, biscuits, cookies, chocolates etc. cleared by the appellant during the financial year 2003-2004 to 2005-2006. The Revenue held a view that since the appellants were engaged in preparing variety of food items using meat, vegetables, pulses etc. and these items being exempted from payment of Central excise duty, while calculating the aggregate value of clearances for SSI exemption under Notification 8/2003 dated 01/03/2003, the gross value of all products is to be considered. In other words, the appellants were held to be ....

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....and packed food that were sold from the shelf having considerable shelf life. The food cooked by the appellant in the kitchen is on specific orders. These cannot be sold to anybody. These food items prepared without any preservative cannot be sold in the open market over the counter. Hence, the test of marketability to determine the excisability will not be satisfied in the present case. 3. The learned Counsel also contested the demand on limitation as well as for imposition of penalty. Reliance was placed on large number of decided cases. 4. The learned AR supported the findings of the lower authorities. He submitted that the food items prepared in the kitchen of the appellant are actually undergoing process of manufacture. The item ....

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....e excisability of various food preparations made in the kitchen of the appellant and served to the customers, we have examined the various tariff entries from Chapter 16 to Chapter 20. The method of preparation of various food items now under consideration is of common knowledge. As correctly contended by the learned AR, it is nobody case that prepared fish or chicken curry ready to serve is can be equated to a raw fish or a chicken curry + some spices. The starting point with various ingredients and the ending point with combination of these ingredients involving different duration of preparation requiring heating, boiling and various other processes will certainly result in the new identifiable and marketable prepared food. The test laid ....