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TMI Blog2005 (1) TMI 433X X X X Extracts X X X X X X X X Extracts X X X X ..... undertaken by them amounts to manufacture and whether the price is to be regarded as cum-duty price. 2. We heard Shri Abhishek Jain, learned Advocate for M/s. Cool Desserts, and another, and Shri S.C. Pushkarna, learned D.R. for Revenue. M/s. Cool Desserts have an Ice Cream Parlour where they serve ice-creams to their customers. They purchase ice-cream in bulk from M/s. Maharashtra Dairy Products Manufacturing Co. (P) Ltd. The demand of Central Excise duty has been confirmed against them and penalties have been imposed on them on the ground that they were preparing the various ice-cream preparations such as Sundaes, Shakes, Blast and cakes out of the ice-cream purchased by them after adding ingredients such as nuts, wafers, sharbats, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty on any product, the first requirement is that it should be manufactured. The Apex Court has laid down a two-fold test for determining as to whether the processes is that, of manufacture , in the case of U.O.I. v. J.G. Glass Industries Ltd., 1998 (97) E.L.T. 5 (S.C.). The two-fold test is as follows. First, whether by the said process a different commercial commodity comes into existence or whether the identity of the original commodity ceases to exist; secondly, whether the commodity which was already in existence will serve no purpose but for the said process. In other words, whether the commodity already in existence will be of no commercial use but for the said process. In the present matter the processes undertaken by M/s. Cool ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 690 (T). The Revenue has relied upon the decision in the case of Bata India, 1996 (84) E.L.T. 164 (S.C.). The Revenue s appeal becomes infructuous as no duty is payable by M/s. Cool Desserts and the question of determination of assessable value does not survive. Further the appeal filed by Revenue against Shri Chakra Tyre s decision has been dismissed by the Supreme Court 2002 (142) E.L.T. A279 (S.C.). Moreover it has been held by the Supreme Court in the case of C.C.E., Delhi v. Maruti Udyog Ltd., 2002 (141) E.L.T. 3 (S.C.) that the amount realized by the assessee from the sale of goods has to be regarded as a normal wholesale price and in determining the value on which excise duty is payable, the element of excise duty which must be rega ..... X X X X Extracts X X X X X X X X Extracts X X X X
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