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TMI Blog2018 (2) TMI 919X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that the finished products, in the present case are different types of food preparations and are new marketable products and are liable to excise duty subject to due classification as available in the Central Excise Tariff. A summary conclusion that the various food preparations made and sold by the appellants in their kitchen/restaurants are generally covered by the Chapters 16 to 20 will not meet the legal requirement of applying the provisions of Notification 8/2003. The gross turnover to arrive at the exemption limit for the base year has to be reckoned considering value of each one of the manufactured and cleared items which are subjected to excise levy. The matter has to go back to the Original Authority for a clear finding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious base year. The lower authorities confirmed Central excise duty liability of ₹ 6,41,711/- and imposed equal amount of penalty under Section 11AC of the Central Excise Act, 1944. 2. The learned Counsel appearing for the appellant submitted that for levy of excise duty an article must be goods and such goods must be excisable under heading listed in the Central Excise Tariff Act. The lower authorities erred in holding that cooked food is covered under Chapter 16 to 20 of the Tariff without providing specific tariff heading under which food cooked in the kitchen is liable for duty. The learned Counsel submitted that the lower authority made their general observation regarding the products prepared in the kitchen of the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vegetable do not undergo any change to become a new edible food product is factually incorrect. It is nobody case that the chicken/meat is similar to the cooked chicken curry. These are not inter-changeable items and are not emerging on reversible process. Upon cooking or preparation by adding various ingredients in required proportion and undergoing specified preparation process the end product is certainly a distinct product having distinct name, use and character. The test as laid down by the Apex court in Union of India vs. Delhi Cloth and General Mills Co. Ltd. (1977) 1 E.L.T. (J199) S.C.. He satisfied in the process of making prepared edible food in the restaurant. Regarding marketability it is clear that these food items are known ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll not decide the marketability or excisability. This has been a well settled principle by the Apex court. What is needed is to see whether a new, commercially identifiable product emerged after processes undertaken on the raw materials which are distinct from the finished product. We have no hesitation to hold that the finished products, in the present case are different types of food preparations and are new marketable products and are liable to excise duty subject to due classification as available in the Central Excise Tariff. 6. We note that though on merit, in principle, we have held that various food preparations prepared and sold by the appellant in their restaurants or liable to the considered as excisable products, the identity ..... X X X X Extracts X X X X X X X X Extracts X X X X
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