2018 (11) TMI 818 - AT - Central Excise

Classification of goods - Non Vegetarian Burgers, McCurry pans, Non Vegetarian wraps etc, which are preparation of meat and served in the restaurant of appellants in butter paper, paperboard, tray, pouches, paperboard cones or any other paperboard boxes - whether the goods put up in unit container merit classification under tariff heading 1601.10 or under CTH 1601.90? Held that - Only the mode of supply for consumption in restaurant is by wrapping them in butter paper, paperboard, tray, pouches, paperboard cones or any other paperboard boxes. How the mode of such service is different from serving the same on crockery or plates has not been answered by the Commissioner (Appeal). 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. 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. Appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Classification of the product under Central Excise Tariff Act.
2. Applicability of Central Excise duty based on the nature of the containers used.
3. Legality of penalties imposed under the Central Excise Act, 1944.

Issue-wise Detailed Analysis:

1. Classification of the Product under Central Excise Tariff Act:
The primary issue was whether the products, specifically non-vegetarian burgers, McCurry pans, and non-vegetarian wraps, should be classified under tariff heading 1601.10 or 1601.90. The Commissioner (Appeal) upheld the classification under sub-heading 1601.10, which includes preparations of meat put up in unit containers and bearing a brand name, thereby subjecting them to excise duty. The appellants argued that they merely heated and served pre-prepared food without any manufacturing process, thus challenging the classification under 1601.10.

2. Applicability of Central Excise Duty Based on the Nature of the Containers Used:
The appellants contended that the goods were served in wrappers, trays, or paperboard boxes, which do not qualify as "unit containers" as defined by the Central Excise Tariff Act, 1985. They cited various judicial precedents to support their claim that the containers used were not designed to hold a predetermined quantity or number, thus should not attract excise duty. The Tribunal noted that the mode of serving food in a restaurant does not equate to packaging in unit containers for wholesale purposes. The Tribunal referenced previous decisions, such as in the case of Shalimar Super Foods and Dodsal Corporation Pvt. Ltd., to support the view that such containers used for serving food in restaurants do not qualify as unit containers.

3. Legality of Penalties Imposed under the Central Excise Act, 1944:
The appellants argued that their activities were carried out openly and within the knowledge of the department, asserting that they acted in good faith. They challenged the 100% penalty imposed under Section 11AC of the Central Excise Act, 1944. The Tribunal found merit in the appellants' argument, noting that the Commissioner (Appeal) failed to consider the nature of the appellants' business operations and the manner of serving food in restaurants. The Tribunal highlighted that the service of food in restaurants does not constitute packaging in unit containers, thus rendering the penalty unjustified.

Conclusion:
The Tribunal set aside the order of the Commissioner (Appeal), ruling in favor of the appellants. It held that the products served in the restaurant do not qualify as being put up in unit containers and, therefore, are not subject to excise duty under tariff heading 1601.10. The Tribunal also found the penalties imposed to be unwarranted, given the nature of the appellants' operations. The appeal was allowed, and the order of the Commissioner (Appeal) was overturned.