TaxTMI 
TaxTMI 
2025 (5) TMI 1749
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....ng amounts paid towards duty. 1.2 Excise Appeal No. E/40720/2015 has been filed by Mr. Naresh Kumar Vij, Authorised Signatory of M/s. Bakers Product (India) (hereinafter referred to as Appellant-A2) assailing the above impugned order for imposing penalty under Rule 26 ibid. 1.3 The details of the duty demand and penalty involved in the subject appeals are tabulated below: - Appeal E/40719/2015-DB - Bakers Product (India) SI. No SCN / SOD No Date Period Duty (Rs) Penalty under Section 11AC 1 04/2014 07.05.2014 01.04.2009 to 14.08.2013 1,11,34,013 . 1,11,34,013 2 08/2014 04.09.2014 15.08.2013 to 31.10.2013 19,64,263 19,64,263 3 11/2014 26.11.2014 01.11.2013 to 28.02.2014 15,33,873 15,33,873 Appeal E/40720/2015-DB - Nares Kumar Vij SI.No SCN / SOD No Date Period Penalty under Rule 26 1 04/2014 07.05.2014 01.04.2009 to 14.08.2013 1,11,34,013 2 08/2014 04.09.2014 15.08.2013 to 31.10.2013 19,64,263 3 11/2014 26.11.2014 01.11.2013 to 28.02.2014 15,33,873 1.4 The said appeals involving the same impugned Order-in-Original No. 19/2014 (Commr.) dated 31.12.2014 are being taken up together for common disposal. 2.1 The Appellant was enga....
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....ysters Ltd. [2011-TIOL-989-CESTAT-AHM] ii. Icon Industries [2018 (7) TMI 1526 Del HC] iii. Embassy Property Development [2024 (1) TMI 983 CESTAT Blr] 3.2 In respect of demand of duty on clearances of Custard Powder, the appellant contended that the said product was covered under Sl.No.19 of Notification No. 1/2011 - CE dated 01.03.2011 and as per this Notification, the effective rate is 1% from 1.3.2011 up to 16.3.2012 and 2% with effect from 17.03.2012 and accordingly the amount of duty payable had to be reworked whereas the impugned order confirmed the demand of excise duty on the commodity at the rate of 8% under Notification No. 02/2008 dated 01.03.2009. 3.3 In respect of demand of duty on Icing Sugar, it was averred that The impugned order had demanded duty at the rate of 5%/6% as per Notification No. 02/2011 CE dated 01.03.2011 on Icing sugar whereas it is the appellant's case that the demand at the said rate is applicable only in cases where Cenvat credit is availed and Since, the appellant had not claimed Cenvat credit, it is submitted that the applicable rate of duty is 1% upto 16.03.2012 and 2% from 17.03.2012 in terms of Notification No. 01/2011 CE dated 01.03.2011....
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....he Commissioner were not maintainable with effect from 15.08.2013. As such the Statements of Demand dated 04.09.2014 and 26.11.2014 could not have been issued to the appellant as the basic condition of Sub Section 7A of Section 11A namely "the grounds relied upon for the subsequent period are the same as are mentioned in the earlier notice or notices" is not satisfied. Hence it was averred that the two Statements of Demand were required to be set aside and no Central Excise duty could be demanded on this ground. 3.6 The appellant submitted that the cum tax benefit should be extended to them for the period under dispute relying upon the decision in the case of Maruti Udyog Ltd. 3.7 It was contended that there was no suppression of facts with intent to evade payment of tax in as much the appellants sales ledger, which is the basis for payment of sales tax and for computation of Income for the Balance Sheet and annual accounts, forms the basis for the duty demanded in the Show cause notice and duty confirmed in the impugned order. 4. The Ld. Authorised Representative Ms. O.M. Reena for the Department affirmed the findings in the impugned order and submitted that the Appellants had ....
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....ment. 8.2 It is seen from the records that the appellant manufactured baking powder by blending sodium bi carbonate, sodium aluminium sulphate and maize starch. They had claimed Cenvat Credit mainly for only one raw material namely Maize starch and to certain extent for sodium aluminium as against the duty demand of Rs.18,66,889/- for the period from 2009-10 to 2013-14. It is seen from para 5.1 (iii) of the Order-in-Original that the appellant has purchased duty paid Maize starch from Riddi Siddhi Limited, Gujarat Ambuja Exports Limited, etc. and the appellant has furnished the invoice wise details for claiming the Cenvat Credit. Thus, the duty paid nature of the inputs is not doubted by the Department. The only ground for denial of credit is that it cannot be extended for the period prior to Excise Registration. 8.3 It is a settled principle in law that the benefit of credit cannot be denied to a manufacturer for the period prior to Registration. In the case of Well Known Polyesters Ltd. [2011 (267) ELT 221 (Tri.-Ahmd.)], it is held as follows:- "5. The first issue is whether the appellant was eligible for the cenvat credit when they have not taken registration and the cenvat ....
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....espect to other inputs the assessee did not possess any document. However, that ought not have blinded the authority taking note of material which did exist on record (in the form of the payments made towards CVD) which can be legitimately claimed as input credit by the assessee. The record as it stands today also points to the assessee being given the benefit of SSI status and its consequential entitlement to such exemptions as are permissible. Given these circumstances and findings, the denial of Cenvat credit benefit to the assessee, was not justified. The impugned order of the Tribunal is therefore set aside. The respondent-Central Excise Authorities are directed to proceed to grant such Cenvat credit as is permissible to the appellant/assessee, having regard to the documents which are on record and which may be relevant and can be produced by it for the purpose. The question of law is answered in favour of the assessee and against the Revenue. 16. The appeal is allowed in the above terms." Hence, we have no hesitation in holding that the denial of cenvat credit is not tenable and hold that the appellant is entitled for Cenvat credit as claimed by them on the raw materials u....
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....luding instant food mixes It may be seen from the above entries that all kinds of food mixes including instant food mix attract 1% rate subject to non availment of cenvat credit. The appellant in their reply claimed that the custard powder manufactured by them is a food mix which are to be mixed with milk and is ready to use. Further, there is no doubt about the non availment of cenvat credit on input or input service used for the manufacture of the subject product. 9.3 It is noticed that Custard powder is specifically classifiable under Tariff Item 2106 90 80 of Central Excise Tariff and the show cause notice also adopted the same and hence we find force in the claim of the appellant and accordingly the custard powder manufactured by the appellant is entitled for 1% rate prescribed under Sl.No. 19 of Notification No. 01/2011-CE dated 01.03.2011 upto 16.03.2012 and then 2% with effect from 17.03.2012. 9.4 With regard to the claim of concessional rate for icing sugar, we observe that there is no merit in the claim of appellant as it is neither a food mix nor ready to eat packaged food as specified in Sl. No. 22 of the above notification. 9.5 There is a demand of duty on Drinkin....
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....e Notice contended that the Barnd Name "Bakers" is registered for Corn Flour only and no prudent person manufacturing maize starch would approach the Registrar of Trade Mark and get Bakers Trade Mark for Corn Flour. Further, they contended in the reply that if it is maize starch as claimed by the Department then there is no brand name for maize starch and in such case duty demand on the ground of other man's brand name does not survive. However, the Adjudicating Authority has not examined the above points but simply confirmed the demand. 10.6 Regarding demand of duty on Maize Starch, Appellant intends to classify its product as Corn Flour under CTH 1102 of CETA. However, department seeks to demand duty on repacked Maize Starch by classifying under CETH 11081200 attracting rate of duty @4% in terms of Notification no. 09/2010-CE. In this regard it would be expedient to examine the products classifiable under Chapter 11 of CETA. "Products of the milling industry; malt; starches; inulin; wheat gluten General notes to HSN explanatory notes of Chapter 11 states : (1) Products from the milling of the cereals of Chapter 10 and of sweet corn of Chapter 7, other than milling resi....
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....n) flour 13 02.90 - Other This heading covers flours (i.e., the pulverised products obtained by milling the cereals of Chapter 10) other than flours of wheat or meslin. Products of the milling of rye, barley, oats, maize (corn) (including whole cobs ground with or without their husks) grain sorghum, rice or buckwheat are classified in this heading as flours if they fulfil the requirements as to starch content and ash content set out in paragraph (A) of Chapter Note 2 (see General Explanatory Note) and comply with the criterion of passage through a standard sieve as required by paragraph (B) of that Note. Flours of this heading may be improved by the addition of very small quantities of mineral phosphates, anti-oxidants, emulsifiers, vitamins or prepared baking powders (self-raising flour). The heading also covers "swelling" (pregelatinised) flours which have been heat treated to pregelatinize the starch. They are used for making preparations of heading 19.01, bakery improvers or animal feeds or in certain industries such as the textile or paper industries or in metallurgy (for the preparation of foundry core binders). Flours which have been further processed or had other ....
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....pany (India) [1999 (108) ELT 673]. This case was maintained in Supreme Court as Commissioner vs. Corn Products Co. (India) Ltd. [2000 (121) E.L.T. 223]. Also, the case of Weikfield Products Co. Pvt. Ltd. vs. CCE, Pune [1999 (106) ELT 69] also supports the appellant for classification of corn flour. 10.9 Further, we have examined the arguments of the parties and it is apparent that the appellant marketed the product as corn flour only. The Department has not substantiated anything to disprove the claim of the appellant. At this juncture, we would like to refer to the decision of the Hon'ble Supreme Court in the case of M/s. H.P.L. Chemicals Ltd. Vs. Commissioner of Central Excise, Chandigarh [2006 (197) ELT 324 (SC)] which has held as follows, and the ratio of which is squarely applicable to the facts of the case on the issue of classification:- "29. This apart, classification of goods is a matter relating to chargeability and the burden of proof is squarely upon the Revenue. If the Department intends to classify the goods under a particular heading or sub-heading different from that claimed by the assessee, the Department has to adduce proper evidence and discharge the burde....
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.... under :- "It is not in dispute before us, as it cannot be, that the onus of establishing that the said rings fell within Item 22-F lay upon the Revenue. The Revenue led no evidence. The onus was not discharged. Assuming therefore, that the Tribunal was right in rejecting the evidence that was produced on behalf of the appellants, the appeal should, nonetheless, have been allowed". 10.10 We would also like to refer to the larger bench decision in the case Brindavan Beverages [2019 (29) GSTL 418 (Tri- LB)] wherein it is held that the burden is on the revenue to support their classification: - "56. ..............The burden is clearly on the Revenue to support its contention with evidence. This is what was observed by the Supreme Court in Hindustan Ferodo Ltd. v. Collector of Central Excise, Bombay, reported in 1997 (89) E.LT. 16 (S.C.), and Union of India v. Garware Nylons Ltd., reported in 1996 (87) E.LT. 12 (S.C.). Paragraph 15 of the judgment of the Supreme Court in Garware Nylons Ltd. is reproduced below: - "15. In our view, the conclusion reached by the High Court is fully in accord with the decisions of this Court and the same is justified in law. The burden of proof is ....
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....ntage passing through a woven metal wire cloth sieve with the aperture indicated in Column (4) or (5) is not less, by weight, than that shown against the cereal concerned. Otherwise, they fall in heading 11.03 or 11.04. Cereal (1) Starch content (2) Ash content (3) Rate of passage through a sieve with an aperture of 315 micrometres (microns) (4) 500 micrometres (microns) (5) Wheat and rye..... 45% 2.5% 80% - Barley........ 45% 3% 80% - Oats......... 45% 5% 80% - Maize (corn) and grain sorghum..... 45% 2% - 90% Rice..... 45% 1.6% 80% - Buckwheat..... 45% 4% 80% - Further, the Heading 1102 of Central Excise Tariff specifically covers Corn Flour under Tariff Item 1102 20 00 as Maize (Corn Flour) and the relevant heading is reproduced below :- Tariff Item Description of goods Unit Rate of duty (1) (2) (3) (4) 1101 00 00 WHEAT OR MESLIN FLOUR kg. Nil 1102 CEREAL FLOURS OTHER THAN THAT OF WHEAT OR MESLIN 1102 10 00 Omitted 1102 20 00 - Maize (corn) flour kg. Nil 1102 90 - Other: 1102 90....
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....8) ELT 673 (Tribunal)] and Weikfield Products Co. (I) Pvt. Ltd. Vs. Collector of Central Excise, Pune [1999 (106) ELT 69 (Tribunal)] wherein it was held that sieving of duty paid starch and selling the same under the name 'Corn Flour' was ruled as not amounting to manufacture. In this context, we find the reliance of the case laws by the Appellant are relevant and are discussed below: - i. In the case of Chemphar Drugs & Liniments [1989 (2) TMI 116-SC)], the Apex Court held: - "8. Aggrieved thereby, the revenue has come up in appeal to this Court. In our opinion, the order of the Tribunal must be sustained. In order to make the demand for duty sustainable beyond a period of six months and up to a period of 5 years in view of the proviso to sub-section 11A of the Act, it has to be established that the duty of excise has not been levied or paid or short-levied or short-paid, or erroneously refunded by reasons of either fraud or collusion or wilful misstatement or suppression of facts or contravention of any provision of the Act or Rules made thereunder, with intent to evade payment of duty. Something positive other than mere inaction or failure on the part of the manufacturer or p....
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....y. It does not mean any omission. The act must be deliberate. In taxation, it can have only one meaning that the correct information was not disclosed deliberately to escape from payment of duty. Where facts are known to both the parties the omission by one to do what he might have done and not that he must have done, does not render it suppression." iii. In a recent decision of Northern Operating Systems Pvt. Ltd. [2022 (50) TMI 967-SC], the Hon'ble Apex Court has held as follows: - "62. The revenue's argument that the assessee had indulged in wilful suppression, in this court's considered view, is insubstantial. The view of a previous three judge ruling, in Cosmic Dye Chemical v. Collector of Central Excise (1995) 6 SCC 117 - in the context of Section 11A of the Central Excise Act, 1944, which is in identical terms with Section 73 of the Finance Act, 1994 was that: "Now so far as fraud and collusion are concerned, it is evident that the requisite intent, i.e., intent to evade duty is built into these very words. So far as misstatement or suppression of facts are concerned, they are clearly qualified by the word "wilful" preceding the words "misstatement or suppression of fa....