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TMI Blog2009 (11) TMI 716X X X X Extracts X X X X X X X X Extracts X X X X ..... n a plain reading of the notification, that all edible preparations ready for consumption are exempt, does not flow from the words which are used in the said notification i.e. sweet meats, bhujia, mixture, chabena etc. Appeal allowed - decided in favor of appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... xemption specified at Sl. No. 14 of Notification No. 6/2002-C.E., dated 1-3-2002 as amended should not be denied to the impugned products (details indicated in the Annexure to the Show Cause Notice), which was manufactured by… (II) Why the Central Excise Duty amounting to Rs. 29,43,285/- and Education Cess amounting to Rs. 58,866/- should not be demanded and recovered from them on the subject goods manufactured and cleared during the period from 1-11-2005 to 28-2-2006 under the provisions of Section 11A of the Central Excise Act, 1944. (III) Why interest at such rate as fixed by the Central government for the time being in force, should not be charged under Section 11AB of the Central Excise Act, 1944. (IV) Why Penalty should not be imposed on them under Section 11AC of Central Excise act, 1944/Rule 25 of Central Excise Rules, 2002. 3. The appellant filed a detailed reply to the show cause notice wherein they stated that the issue involved in this case is regarding the entitlement of exemption under Notification No 6/02-C.E., dated 1-3-02 in respect of goods mentioned in annexure to the show cause notices. It was the submission before the adjudicating authority that earl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and accepted that exemption under the preceding Notification No. 6/2000 and 3/2001, containing identically worded entries was available to the appellants. The impugned order has rejected the application of the earlier adjudication order dated 19-10-2001 on the ground that the appellants have added a few more items to the items already considered and decided vide Order-in-Original dated 19-10-2001 and that the department is not barred from re-opening the dispute to stop perpetuation of wrong assessment. The appellants submit that these findings are unsustainable inasmuch as it would be evident from a comparison of the items considered, in the earlier proceedings and in the present proceedings that the broad class of these remains to be Ready-to-Eat food preparations only. For e.g., Sl. No. 3 and 4 of Table 2 containing a list of items not eligible to exemption, refers to Ready-to-Eat Karabath, whereas, the same item was (considered at Sl. No. 1 of the Annexure to the Show-Cause-Notice dated 28-6-2001 (Page- 72). Similarly, Ready-to-Eat Kesaribath, Bisi bele bath etc. were also considered to be entitled to exemption in the earlier proceedings, whereas, the impugned order takes an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s seeks to state that the general words are construed as limited to things of the same kind as those specified and attempts to reconcile incompatibility between specific-- and general words so that all the words in a statute are given effect as far as possible without rendering any part superfluous. Justice G.P. Singh in his entry further states that the rule of 'ejusdem generis' would apply only when : (a) the statute contains an enumeration of specific words; (b) the subjects of enumeration constitute a class or category; (c) that class or category is not exhausted by the enumeration; (d) the general terms follow the enumeration; and (e) there is no indication of a different legislative intent. It is further stated by Justice G.P. Singh that if the subjects of enumeration belong to a broad based genus as also to a narrower genus, there is no principle that the general words should be confined to the narrower genus. Applying the above tests of application of the rule of ejusdem generis, the appellants submit that sweetmeats, by themselves constitute a separate class, namkeens constitute a separate class and bhujia, mixture and chabena similarly constitute a separate class ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on'. D. 2 The above exemption was continued in the following manner from time to time : Sl. No. in the Notfn. Notification No. Entry Rate of duty 1. 364/86-C.E., dated 29-7-1986 In the said notification, for the word "'idli-mix", the words ''papad, idli-mix", shall be substituted. NIL 5. 426/86-C.E., dated 18-9-1986 Papad, idli-mix, vada mix. dosa-mix, jalebi-mix,. gulabjamun-mix, or namkeens, such as bhujyia, chabena NIL 8. M.F. (D.R.) F. No. 334/1/89-TRU, dated 13-3-1989 Papad, idli-mix, vada-mix, dosa-mix, jalebi-mix, gulabjamun-mix or namkeens, such as bhujyia, chabena NIL 15. 77/93-C.E., dated 2-3-1993 Papad, idli-mix, vada-mix. Dosa-mix, jalebi-mix, or gulabjamun-mix, or namkeens, such as bhujia chabena NIL 25 (iii) 4/93-C.E., dated 28-2-1993 Papad, idli-mix, Vada-mix, dosa-mis, jalebi-mix, gulabjamun-mix, or namkeens, such as bhujyia. chabena NIL 21 (iii) 2/94-C.E., dated 1-3-1994 Papad, idli-mix, vada-mix, dosa-mix, Jalebi mix, gulabjamun-mix, or namkeens, such as bhujiya, chabena NIL 15A 70/95-C.E., dated 16-3-1995 papad, idli-mix. vada-mix, dosa-mix, jalebi-mix, gulabjamun-mix, or namkeens such as bhujyia, chabena NIL 21.2 8/96-C.E., da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions in ready for consumption form, and papad. NIL 14. 6/2002-C.E., dated 1-3-2002 Sweetmeats (known as 'misthans' or'mithai' or by any other name), namkeens. bhujia, mixture, chabena and similar edible preparations in ready for consumption form, and papad. NIL The following goods, namely :- (i) Soya textured protein, soya yoghurt, soya tofu, soya based food preparations for infants use, soya milk powder, soya………. The above table clearly shows that the intention of the Government as clarified in the year 1970 has been continued till date which was also the view of the department as evident from the Order-in-Original dated 19-10-2001 passed by the Deputy Commissioner. From the legislative history and the earlier departmental clarification, it is clear that it was never the intention of the Government to subject Ready-to-Eat package foods to excise duty and therefore, the finding of the lower authority that the expression 'similar' should be read with the class of foods such as sweetmeats, namkeehs, bhujia, mixture and chabena and not with edible preparations in ready for consumption form is clearly unsustainable. The word 'similar' is only to qualify th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 9 x 50g 77 under Chapter 20 4. Frozen - Chandrahara 6 x 50g 55 RTE - Kesaribath 24 x 300g 5 Sweetmeat By notification RTE - Kesaribath 48 x 300g 6 The appellants submit that the number of items in table 2 of the impugned order would come down substantially if the above items are added to table 1 related to goods classifiable under Chapter 20. 5. Learned SDR on the other hand would draw our attention to the findings recorded by the adjudicating authority. She would submit that in the previous proceedings wherein the benefit of Notification No. 6/2000 was accorded to the appellants, there were only 28 items while in the current proceedings there are 84 items which are not the same. 5.1 It is her submission that since there is an increase in the number of products, revenue took a view that the benefit of Notification is not applicable. It is her submission that principle of resjudicata will not apply in respect of tax matters. It is also her submission that it is a settled law that perpetuation of wrong assessment 'cannot be continued. 5.2 It is also her submission that the benefit of Entry No. 14 of Notification No 6/02 very clearly envisages the benefit to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undisputed that the items in question (numbering 84) are edible preparations and are an extension of the items manufactured by the appellants earlier. 9. It is also undisputed that the process of manufacturing by the appellants of the product remains the same but for little improvement in the technology of packing. 10. It is also undisputed that the appellants were marking the said products 'ready to eat' form and claiming it so in all their advertisements. 11. We find that the issue in this case can be settled on only one point of 'res judicata'. We find that in an identical issue for an earlier period i.e. from April 2000 to April 2001, the appellants were issued show cause notices. The said show cause notices were contested by the appellant before adjudicating authority. Deputy Commissioner of Central Excise vide OIO No. 63/01 dated 19-10-2001, decided the general exemption granted to the appellants under Sl. No. 8 of Notification No. 8/01 dated 1-3-2000 & Sl. No. 14 of Notification No. 8/01 dated l-3-01. The exemption granted in those notification reads as under : "Sweet meats' (known as misthans or mithai or by any other name) namkeens, bhujia, mixture chabena and other ed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2007 (209) E.L.T. 161 (S.C.) (8) Jyothy Laboratories Ltd. v. CCE, 2007 (978) RLT 276 (CESTAT-Ban) (9) CCE Allahabad v. Surcoat Paints (P) Ltd., 2008 (232) E.L.T. 4 (S.C.) has clearly settled the law, that by non-challenge of an order in an identical issue, revenue is precluded from challenging the similar order passed, even if it is in respect of another unit. In the case before us we find that the revenue has not challenged the order which was passed in the appellant's own case earlier. Hence the ratio of the decision of the Apex courts as herein above reproduced will clearly cover the issue in favour of the appellant as there is nothing on record to show that there was a change of the facts. 16. The change of facts as canvassed by the learned SDR that the items manufactured earlier were only 18 in number while in the current case they are 129 in number does not carry the case of the revenue any further, as we have already held that items in question in the current proceedings are only extension of the items which were manufactured in the year 2001. 17. In our considered view, the revenue is precluded from raising the same issue again in these proceedings. Accordingly respect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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