TaxTMI 
TaxTMI 
2018 (11) TMI 818
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.... McDonald manufacturing and selling 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. Three 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. 2.2 The adjudicating Authority decided the classification of preparation of meat under CSH 1601.10 and confirmed the demand of duty along with interest and penalty in respect of the clearance and sale of these products. He dropped the demand in respect of products under chapter 18. 2.3 Aggreived the appellants filed the appeal before the Commissioner (Appeal), who as indicated in para 1, upheld the order of adjudicating authority. 2.4 Aggrieved by the order of Commissioner (Appeal), Appellants have preferred this appeal. 3.0 Appellants have assailed the ....
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....ted as being designed to hold a pre-determined quantity as per the definition of Unit Container provided under Section Note 1 to Section IV of the Central Excise Tariff Act, 1985. iii. The unit container should be designed to hold as pre-determined quantity or number of any goods, as has been held in following decisions: a. G. Claridge and Company Ltd. Vs Collector of Central Excise [1991(52) ELT 341 (SC)] b. Commissioner of Sales Tax VS Voltas Limited [1997(39) STC 409 (Bom)] c. Commissioner of Central Excise Vs. Shalimar Super Foods [2007 (210) ELT 695 (Tri-Mumbai)]. d. Dodsal Corporation Pvt. Ltd. VS Commissioner of Central Excise [2011 (263) ELT 719 (Tri-Bang.)] e. Prerna Fast Foods & Others vs Commissioner of Central Excise Mumbai [2011 (4) TMI 1101-CESTAT MUM] f. Agro Food Punjab Ltd. Vs Commissioner of Central Excise [1990 (49) ELT 404 (Tribunal)]. iv. Butter paper, paperboard, tray, pouches, paperboard cones or any other paperboard boxes used by the appellant for serving the edible preparation are neither enclosed receptacle nor sealed nor meant to pack a pre-determined quantity or number and cannot be used for transportation or storage. v. In the case of Com....
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.... a connection in the course of trade between the product and some person using such name or mark with or without any indication of the identity of that person. Heading No/ Subheading No Description of Goods Rate of Duty 16.01 Preparation of meat, of fish or of crustaceans, molluscs or other aquatic invertebrates including sausages and similar products, extracts and juice, prepared or preserved fish and caviar and caviar substitutes 1601.10 Put up in unit containers and bearing a brand name 16% 1601.90 Others Nil 5.2 There is no dispute in respect of the classification of the goods under the chapter 16 or elsewhere. The dispute is whether the goods in question are put up in a unit container and bearing a brand name so as to classify them under heading 1601.10 or under heading 1601.90. If the goods are held to be classifiable under heading 1601.10 then they will subject to Central Excise duty. 5.3 Commissioner (Appeal) has in para 13 of his order while deciding the classification under 1601.10, recorded as follows: "13. Further as per the section note the "Unit Container", means a container, whether large or small (for example, tin, can, box, jar, bottle, ....
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....al). If the reasoning and logic of Commissioner (Appeal) is accepted then service of food in restaurant/ hotel for consumption therein will have to be treated as service in unit container. Do really we say "a plate of Chicken Tikka" or a half plate of "Chicken Tikka" served in restaurant is service of the same in unit container. To make the things worse if some brand name is embossed on the said tableware/ crockery then as per commissioner appeal all the non vegetarian preparations served in the restaurants merit classification under Central Excise Tariff Heading 1601.10 and shall be levied to duty. Such a view neither will be logical or sustainable as it against the basic principle of levy of Central Excise duty, which is never levied on the retail consumption of goods. The basic purpose of the phrase "put up in unit containers" is that for whole sale clearance from the manufactory the goods have been packed in unit container. We are unable to agree with the reasoning of Commissioner (Appeal) as mode and manner of service in a restaurant cannot determine the leviability to duty. 5.5 The view take by us is in line with earlier decisions of this tribunal as follows: Commissioner o....
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....ransport from the restaurant to the residence of the customer. Therefore we find that the pizzas involved were not covered under the entry 160110 during the period prior to 1-3-2005 and were covered by Notification No. 3/05-C.E., dated 24-2-2005 post 1-3-05. In reaching the above finding, we are fortified by the decision of the Tribunal in the case of Shalimar Super Foods cited above. For the period from 1-3-2005, the Chapter Note 2 to Chapter 16 of the tariff provided that food preparations covered by Chapter 16 had to necessarily contain more than 20% by weight of sausages, meat, meat offal, blood, fish or crustaceans or other aquatic invertebrates or in combination. In all the cases, the weight to be considered is the weight of meat, fish etc. in the preparation at the time it is presented and not the weight of the products before cooking/preparation. We find that the impugned pizzas in respect of which demand has been confirmed are not found in the order to fulfil this condition in the order." Prerna Fast Foods & Others Vs Commissioner Central Excise Mumbai-1 [2011 (4) TMI 1101 - CESTAT Mumbai] "7. On careful examination of the issue before us, we find that the said issue h....