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TMI Blog2013 (2) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... t schedule of CETA, 1985 and the entire quantity manufactured by them were cleared to M/s. Parle Products Pvt. Ltd. (hereinafter referred as M/s. PPPL). A show cause notice was issued to them alleging removal of excisable goods valued at Rs.31,58,090/- involving duty of Rs.2,52,647/- and wrong utilization of cenvat credit of Rs.42,147/- on input packing material. The demand was confirmed by the adjudicating authority and equivalent penalty was imposed on the appellant under Section 11AC read with Rule 13 of Cenvat Credit Rules, 2002 for the period June, 2003 to March, 2005. Aggrieved, the appellant filed an appeal before the Ld. Commissioner (Appeal) who has upheld the order of the adjudicating authority. Hence, the present appeal. 3. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess raw material was attributed to floor sweepings, broken and damaged biscuits. The said broken, damaged biscuits were non excisable goods and hence no duty was leviable on the same. In support, he has referred to the judgments of this Tribunal in the case of Commr. of Central Excise, Bhopal Vs. J.B. Mangharam Food Ltd. -2000 (115) ELT 683 (Tribunal) and followed in the case of Parle Biscuits Pvt. Ltd. Vs. CCE, Jaipur-A/434/03-NB-C dated-11.8.2003. Further, he has submitted that the input (packing materials) received by them were used in the process of manufacture of their finished goods.The demand on the said inputs were also based on the Variance Report. It is his submission that the entire quantity of inputs (packing material) could not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Department is based on the Variation Report recovered from the premises of the appellant. The Variation Report as explained by the Ld. Consultant, not disputed by the Ld. A.R., has been maintained for incentive/penalty on account of less or excess use of raw materials than the agreed norms fixed by their only customer i.e. M/s. PPPL. In the event of excess raw materials were consumed owing to various reasons including generation of broken, damaged and wastage biscuits, the appellant were liable for penalty and if less raw materials were used by generation of less quantity damaged, broken and wastage biscuits, the appellant were rewarded by their customer M/s. PPPL. The case of the Department was that the broken, damaged and wastage biscuit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew is not appropriate. That Heading speaks of preparation of a kind used in animal feeding. The expression "preparation" speaks of a deliberate act of manufacture of something which is used for animal feeding. Process of coming into existence of this product, as described above, cannot by any stretch of imagination be treated as deliberate one as undertaken by the respondent. Accordingly, we do not find any substance in Revenue's appeal. Hence, we dismiss the same. 7. This principle has been followed subsequently by this Tribunal in the case of Parle Products Pvt. Ltd. (supra). The amendment to the definition of excisable goods brought into effect from 10th May, 2008 cannot be made applicable retrospectively and hence the principle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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