2017 (2) TMI 430 - AT - Central Excise

Evasion of duty - SSI exemption - the use of the brand name Domino s on all the containers would deprive them of the benefit of small-scale exemption rendering each of the outlets to be liable to duty - Held that - the respondent may, indeed, have led fresh evidence before the appellate authority, the finding in the impugned order flows from perceptible non-compliance with section 4 which is a legal issue that can be raised at any time. We do not find any impropriety in the impugned order. The appeal is against the remand ordered by the first appellate authority; that authority has not settled the classification dispute but has merely directed that the classification needs to be considered afresh along with other aspects such as valuation. The exclusion of classification from the instruction to withdraw pending appeal is intended to ensure that discriminatory treatment is not meted out in applying the appropriate rate of duty - Remand does not open up such a possibility and, hence, the issue before us is the propriety of the remand which is not excluded from applicability of the new litigation policy - appeal dismissed.

Issues:
1. Classification of food items for central excise duty.
2. Validity of the duty demand based on sales proportion.
3. Imposition of penalty under section 11AC of Central Excise Act, 1944.
4. Remand of the matter by the original authority.
5. Compliance with valuation rules under section 4 of Central Excise Act, 1944.
6. Maintainability of the appeal based on the value in dispute threshold.

Classification of Food Items for Central Excise Duty:
The dispute revolved around the classification of food items served at outlets of a company, with the contention that the items were chargeable to duty under specific headings of the Central Excise Tariff. The original authority classified 'non-vegetarian pizzas' and 'chicago wings' under certain headings, leading to a duty demand. However, in the appeal, it was argued that a different classification should have been considered, pointing out flaws in the original classification.

Validity of Duty Demand Based on Sales Proportion:
The duty demand was calculated based on the proportion of sales of specific items at the outlets. The appellate authority raised concerns about the reliability of this method, especially considering that a significant portion of sales was through home deliveries. This raised doubts about the accuracy of the duty evasion amount calculated using this approach.

Imposition of Penalty under Section 11AC of Central Excise Act, 1944:
The original authority imposed penalties on the company and an individual under section 11AC of the Central Excise Act, 1944. However, the appeal highlighted flaws in the adjudication order, questioning the credibility of the findings and the process followed in imposing the penalties.

Remand of the Matter by the Original Authority:
The matter was remanded back to the original authority due to various flaws identified in the adjudication order. The appellate authority found that critical considerations were overlooked in the initial decision, leading to the remand for a more thorough examination of the classification and other relevant aspects.

Compliance with Valuation Rules under Section 4 of Central Excise Act, 1944:
The appellate tribunal emphasized the importance of complying with valuation rules under section 4 of the Central Excise Act, 1944. It noted the silence of the original authority on this aspect, indicating a lack of clarity in the assessment process related to the duty liability.

Maintainability of the Appeal Based on the Value in Dispute Threshold:
The appeal's maintainability was questioned based on the value in dispute falling below the prescribed threshold. The tribunal analyzed the applicability of the threshold instruction issued by the Government of India and concluded that the dispute's classification nature did not exclude it from the threshold requirement, leading to the dismissal of the appeal.

In conclusion, the appellate tribunal dismissed the appeal, finding no merit in challenging the remand order and upholding the original authority's decision on classification, duty demand calculation, penalty imposition, and compliance with valuation rules.

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