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TMI Blog2015 (10) TMI 2400X X X X Extracts X X X X X X X X Extracts X X X X ..... for disposal. 2. Brief facts of the case are that the appellants are flight caterers. They prepare certain edible items in their factories such as bread, cakes, pastries, chocolates and pay excise duty on such items. In addition they make cutlery pack and put a card showing their name on the cutlery pack so that it is known to the passengers that the catering is by them. They also prepare other items like dal, rice, curry, etc. which are separately packed. On such items there is no brand name. These items are handed over to their customers, i.e., airlines. These items are heated before serving on the aircrafts. In addition to these items, appellants also bought other items like butter, jam, pickles, etc. manufactured by other manufacturers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel quoted the following case laws: (i) XI Telecom 1999 (105) ELT 262 (AP); (ii) REPL Engineering 2002 (147) ELT 156; (iii) Dalmia Industries vs. Commissioner of Central Excise 1999 (112) ELT 305; (iv) Ti Diamond Chain vs. Commissioner of Central Excise 2000 (126) ELT 790 3.3. The next submission of the learned counsel was that the meal comes into existence after clearance of goods from the appellants' premises and even if their activity amounts to manufacture, the same was carried out by the cabin crew/flight attendants in the flight during the journey and the demand is confirmed beyond jurisdiction. 3.4. Another contention of the learned counsel is that the stowage sticker cannot be termed as labels bearing brand name and there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner (AR) took us through and reiterated the findings in the impugned orders. 4.1. He submitted that the goods are undoubtedly covered under the heading 2108.99 up to 28/02/2005 and under Tariff heading 2106.90 99 thereafter. He further submitted that the card put in the cutlery very clearly indicates the name of the caterer and the passenger travelling in the air are assured of the quality and also the brand name of the caterer. He submitted that it is immaterial that the brand name stickers are not affixed on each and every item. What is material is that the passenger notes that the catering is being done by the appellants. He further submitted, the fact that few items like pickle, jam, butter, etc. are made by different persons is of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of both the sides. 5.1. At the outset we observe that there is no dispute about the classification of the goods/meals. The point that has been disputed by the learned counsels for the appellants is that the activity undertaken by them does not amount to manufacture as they are only putting certain items in the tray and such activity cannot be considered as amounting to manufacture. We have gone through the findings in the impugned order and we observe that even though this point was taken up before the adjudicating authority, however, no findings have been given on this issue. The impugned orders have proceeded on the assumption that since the goods are classifiable under a particular heading, the activity amounts to manufacture. In our vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red with the department either for payment of excise duty or for payment of service tax. Some of the appellants were manufacturing cake pastries, chocolates and were regularly paying excise duty. Further, it is very well known that the appellants are engaged in providing catering services to the various airlines. In fact, catering to the airline is their main business. Moreover, no such caterer was paying excise duty on meals. In these facts, it is difficult to say that there was suppression of facts or willful misstatement of facts or intention to evade duty. 5.4. For the first issue whether the activity amounts to manufacture or not, we would have normally remanded the matter to the Commissioner for examining the same and give his findin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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