9911796707
TMI Blog2004 (5) TMI 430X X X X Extracts X X X X X X X X Extracts X X X X ..... Confiscation of goods valued at Rs. 98,128/- seized on 10-1-2001 was arrived and ordered to be redeemed on a fine of Rs. 25,000/-. (c) Appeal No. E/2669/2002 by the assessee, emanates from a Show Cause Notice No. 50/MAGAO/2001, dated 18-5-2001, on deny same goods consequent to the which the Commissioner confirmed a demand of duty of Rs. 12,62,443/- under the proviso to Section 11A(1) and imposed a penalty of equivalent amount under Section 11AC read with Rule 173Q. (d) Appeal No. E/3317/2001 filed by Revenue, emanates from a Show Cause Notice No. CE/MAR/1/SCND/COSTA/2000-2001, dated 17-5-2000 proposing to classify the very same products under dispute in Heading 1601.10 and proposing penalty for misdeclaration. In this case, Commissioner (Appeals) vide Order-in-Appeal, impugned now, decided that those every same disputed products, would be classified under 1601.90 since they were "prepared unbranded items put up in unit containers" leviable to 'nil' rate of duty as the mark' COSTA with a star' was the House Mark and not a Brand Name. 2. (a) Since the issues revolve around classification of the products appeal 3317/2001 filed by Revenue the very same Commissioner w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Notes of HSN, reveals that Chapter 2 would cover meat and meat offals in the following states only - (i) fish including packed with salt as a temporary preservative (ii) Meat chilled/frozen, salted in brine, dried or smoked, slightly sprinkled with sugar or with aqnenis solution of sugar treated for tenderizing, chopped, minced, ground and when mixed with meat from different animals. (iii) Packed, branded or not, even when put up in air tight packing only if subjected to permissible treatment of Chapter 2 i.e. as per Note 2 to Chapter 2 which reads as - "2. This Chapter covers products, which are chilled, frozen and salted, in brine, dried or smoked but not otherwise prepared." If any further trea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le. The other cases relied upon by the ld. Advocate viz. D.C. of Sales Tax v. Shiphy International [(1988) 69 STC 325] & Sterling Foods [1986 (26) E.L.T. 3 (S.C.) = (1986) 63 STC 239] of the Supreme Court, also based on finding that frozen shrimps, prawns, lobsters are regarded commercially as the same commodity and therefore there is no manufacture will not help the assessee since sausage or say frank further are not regarded as "pork meat" from which they are made and emerge Commercially "pork meat " is differently understood than sausage etc. When commercially known new entity emerges which is marketable, manufacture does take place, even if classification remains the same, is well settled concept of manufacture under Central Excise Law [See Laminated Packings - 1990 (49) E.L.T. 326 (S.C.)]. The plea of no manufacture taking place has to be therefore rejected. (e) The products in this case are therefore to be classified under heading of Chapter 2 or 16. After determining the chapter, based on the extent of treatment as per Chapter Note 2 to Chapter 2 & the finding as since Para 'C' above the question of applying further six digit classification wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e application stipulation of Chapter Notes Chapter 16. (f) For the period the mark COSTA was on the package, the finding of CCE (Appeals) is - "11. There is considerable force in the arguments advanced by the appellants and their reliance on the Hon'ble Supreme Court judgment in the case of M/s. Astra Pharmaceuticals (P) Ltd. It has been held in the said case that, "house mark" (usually a device in the form of an emblem in, word or both) is an identification of the manufacturer which is compulsory under the Drug Rules. Product mark or brand name (invariably a word or a combination of a word and letter or numeral) is the one by which the product is identified and asked for". In the instant case, the products are themselves identified as either, say, "Sandwich fillers", "Ham". "Salami" as the polythene bags indicate. The word "COSTA's", involving the usage of a punctuation mark "an apostrophe" and the letter "s" is only any indication that the product is manufactured by Costa & Co. Pvt. Ltd. The said word & the star sign cannot be connoted as a "brand name" within the realm of the Chapter Note 2 to Chapter 16 of CETA, 85. 'COSTA V which is a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
