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TMI Blog2023 (11) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... of Additional duty of excise on clearance of pre-budget stock after 10.07.2014. 3. The facts of the case in brief are that the Appellant is a public limited company, inter alia, engaged in the manufacture and sale of Aerated Water, Packaged Water and Fruit-juice based drinks under the brand names pepsi, Mirinda, 7UP, Mountain Dew, Slice etc. Section 85 of the Finance Act, 2005 provides for a levy of additional duty of excise on the goods specified in the Seventh Schedule. The said levy is in addition to any other duty of excise chargeable on such goods. The Appellant, vide its letter dated July 11, 2014 informed the department that aerated waters manufactured by it, pursuant to the budgetary changes, be subject to AED of 5%. The Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who accepted that 84693 cases were actually pre-budget stock as claimed by the Appellant. However, the demand on such pre-budget stock was held sustainable and held liable to be paid along with interest on the ground that Rule 5(1) of Central Excise Rules, 2002 ("Excise Rules") provides that the rate of duty prevailing on the date of removal will apply for payment of duty. Penalty under Rule 25 of the Excise Rules was also imposed on the Appellant. Aggrieved with the impugned order, the Appellant filed an appeal before the Tribunal. 4. Learned Counsel appearing for the appellant submits as follows:- it is submitted that the impugned order passed by the Learned Commissioner goes against the principles of natural justice. The Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tative justifies the impugned orders and reiterates the discussions and findings recorded in the impugned order of Commissioner (Appeals). 6. Heard both sides and perused the records. 7. Section 85 of the Finance Act, 2005 is reproduced hereunder for ready reference- "85. Additional duty of excise (pan masala and certain tobacco products) - (1) In the case of goods specified in the Seventh Schedule, being goods produced or manufactured in India, there shall be levied and collected for the purposes of the Union, by surcharge, an additional duty of excise, at the rates specified in the said Schedule. (2) The additional duty of excise referred to in sub-section- (1) shall be in addition to any other duty of excise chargeable on such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 85, in the marginal heading, for the brackets and words "(pan masala and certain tobacco products)", the words "on certain goods" shall be substituted; (b) the Seventh Schedule shall be amended in the manner specified in the Ninth Schedule." "THE NINTH SCHEDULE [See section 118(b)] In the Seventh Schedule to the Finance Act, 2005,- (i) after tariff item 2106 90 20 and the entries relating thereto, the following sub-heading and entries shall be inserted, namely:- Tariff Item Description of Goods Unit Rate of duty (1) (2) (3) (4) "220210 Waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavored : L 5%"; (ii) tariff item 2402 20 60 and the entries relating the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufactured or produced prior to March 1, 1978 are concerned, the said rule cannot apply for the reason that there was no levy of special excise duty on such goods at the stage and at the time of their manufacture/production. The removal of goods is not the taxable event. Taxable event is the manufacture or production of goods." That CCE, Hyderabad Vs. Vazir Sultan Tobacco Company reiterates a settled position that duty of excise is leviable on 'manufacture' or production of the goods as contemplated by Entry 84 of List-1 of the Seventh Schedule to the Constitution. The mere fact that, for the sake of convenience, the duty is collected at the stage of removal cannot and does not change the character of the tax. It is upon the manu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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