2011 (4) TMI 1101 - AT - Central Excise

Whether Pizza manufactured by the appellants is classifiable under Chapter 19 as classified by the appellants or as classifiable under Chapter 16 as department sought to classify Held that - issue has been settled by this Tribunal in the case of Dodsal Corporation Pvt. Ltd. (2010 - TMI - 203831 - CESTAT, BANGALORE), wherein this Tribunal has held that Pizza cannot be brought under sub-heading 1601.10 for the reason that pizza has a topping of chicken along with other ingredients. It was held that paper carton bearing the logo of Pizza Hut is used mainly for packing and transportation of the pizzas from the outlet to the place where the pizza is consumed. Therefore, it was held that the pizza cannot be classified under Chapter 16 of the Central Excise Tariff Act, 1985, orders are set aside and the appeals are allowed with consequential relief, if any

Summary

Issues:
Classification of Pizza under Chapter 19 or Chapter 16 of the Central Excise Tariff Act, 1985.

Analysis:
The appellants filed appeals along with stay applications and applications for condonation of delay in filing the appeals. None appeared on behalf of the appellants during the hearing, leading to the disposal of the appeals. The reason for the delay in filing the appeal was explained by the appellants, stating that a common Order-in-Appeal was passed against two Orders-in-Original, resulting in the delay of 72 days. The Tribunal found the reason satisfactory and condoned the delay, allowing the applications for condonation of delay.

Upon examining the case records, the Tribunal identified the main issue at hand: the classification of Pizza manufactured by the appellants under Chapter 19 as claimed by the appellants or under Chapter 16 as sought by the department. The appellants, engaged in selling Pizza under the brand name of Smokin Joe's, manufactured non-vegetarian pizzas and sought to classify them under Chapter 19. However, the Revenue argued that due to the percentage of topping used by the appellants being more than 20%, the goods should be classified under Chapter 16. A show-cause notice was issued, leading to a decision classifying the goods under Chapter 16, with duty demand confirmed and penalties imposed. Dissatisfied with this decision, the appellants approached the Tribunal.

The Tribunal, after hearing the learned JDR and examining the issue, referred to previous judgments to settle the matter. Citing the case of Dodsal Corporation Pvt. Ltd. Vs. Commissioner of Central Excise, Bangalore, the Tribunal held that Pizza with chicken topping cannot be classified under sub-heading 1601.10 as it is primarily used for packing and transportation. The Tribunal also referenced a similar decision in the case of CCE, Mumbai-V Vs. Dodsal Corporation Pvt. Ltd. Based on these precedents, the Tribunal concluded that the issue was no longer open for debate. Consequently, the Tribunal waived the pre-deposit requirement, took the appeal for final disposal with the consent of the learned JDR, and set aside the impugned orders, allowing the appeals with any consequential relief.

In conclusion, the Tribunal resolved the issue by determining that Pizza with chicken topping is not classifiable under Chapter 16 of the Central Excise Tariff Act, 1985, based on established precedents. The impugned orders were set aside, and the appeals were allowed, providing consequential relief where applicable.