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TMI Blog2016 (6) TMI 772X X X X Extracts X X X X X X X X Extracts X X X X ..... ., & Ors., [2000 (8) TMI 5 - SUPREME Court]. The said decision arose under the provision of the Income Tax Act and the matter pertains only to the flight kitchen operated by the appellant Hotel. Therefore, the Hon'ble Supreme Court did not deal with the other contentions. - the petitioner cannot rest his case solely based on the interpretation given by the Hon'ble Supreme Court in the case of Indian Hotels Co., Ltd., & Ors., case, which arose under the Income Tax Act. As rightly pointed out by the learned Senior Standing counsel appearing for the respondent what the petitioner seeks to agitate is a disputed question of fact and such disputed questions would not be normally adjudicated in a Writ Petition, more particularly, when it involv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - under Rule 27 of the Central Excise Rules 2002. 3. Before the learned counsel could commence his submission, this Court posed a question as to why the petitioner has not availed the alternate remedy of filing an appeal before the CESTAT as against the impugned order, pointing out that the said remedy is not only effective, but efficacious. The learned counsel of the petitioner submitted that in the light of the decision of the Hon'ble Supreme Court in the case of Indian Hotels Co., Ltd., Ors., vs. Income Tax Officer, Mumbai Ors., reported in (2000) 7 SCC 39, the petitioner is entitled to challenge the impugned order by way of a Writ Petition. Therefore, the learned counsel was requested to make submission on the preliminary iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued and another show cause notice dated 08.01.2014, covering period from December 2012 to September 2013 was issued. The petitioner submitted their reply vide letters dated 21.06.2013, and 28.01.2014, contending that benefit of exemption is available to cooked food, as it is not covered under the definition of 'manufacture' as provided under Section 2(f) of the Central Excise Act, 1985, and hence, not excisable. Further, it was contended that cooked food is not appearing under any of the chapter headings 16 to 21, including 2106. Therefore, the value of the food sold, cannot be included in arriving at the value of clearance for the purpose of exemption notification. Further, it was stated that the value of clearance of cakes, pastri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter cooking, a new and different product emerges and therefore, it is manufacture. Ultimately, the proposals made in the show cause notice was confirmed and the impugned order came to be passed. The submission of the learned counsel for the petitioner is that though the decision of the Hon'ble Supreme Court in Indian Hotels Co., Ltd., Ors., case was placed before the Commissioner, he has not considered the same and Hon'ble Supreme Court held that the raw material is at the most proposed so as to make it eatable and it would not be applicable in cases, where only processing activity is carried on. Thus, the above is the sheet anchor of the submissions of the learned counsel and it is his endeavour to state that what is done by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facture or production of articles within the meaning of Section 80-J-(4)(iii) of the Income Tax Act, 1961 and it was not part of the hotel activity of the assessee. Therefore, the CIT (Appeals) held that the activity would not come within the purview of Section 80-J(6), which provides for approval by the Central Government. Accordingly, the Income Tax Officer was directed to allow the deductions under Section 80-J, in respect of the capital employed in the flight kitchen. Though two other cases were also dealt with in the said judgment, at present, I am not referring to the same, as they are not germane to the facts of the instant case. After referring to Sections 80-J(1) proviso, 80-J(4), 80-J(6) and Section 32A of the Income Tax Act, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations. The case on hand arises under the Central Excise Act and the definition of 'manufacture' as defined under Section 2(f) of the Central Excise Act, 1944, is as under:- (f) manufacture includes any process,- (i) incidental or ancillary to the completion of a manufactured product; (ii)which is specified in relation to any goods in the Section or Chapter notes of the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) as amounting to manufacture; or (iii) which, in relation to the goods specified in the third schedule, involves packing or repacking of such goods in a unit container or labeling or relabeling of containers including the declaration or alteration of retail sale price on it or Adoption ..... X X X X Extracts X X X X X X X X Extracts X X X X
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