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TMI Blog2001 (11) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... We have seen the order received by M/s. Adhunik Food Products. We note that in that order the penalty has been shown as Rs. 2,31,970/- and not Rs. 2,31,20,970/-. In the circumstances, we do not find any error in the stay order. If there was any mistake in the copy of the order served on M/s. Adhunik Food Products, the mistake should have been rectified by filing an application before the adjudicating authority. Since no mistake is found in the copy of the order-in-original served on M/s. Adhunik Food Products, Misc. Application No. E/Misc./218 is rejected. 3.Misc. Application No. E/Misc./30 is the same as the Misc. Application No. E/Misc./218. 4.Misc. Application No. E/Misc./719 filed by the Commissioner of Central Excise, Meerut prays for early hearing of the case. The case is already listed for hearing today and therefore, this prayer of the Commissioner has been allowed. The Misc. Application is accordingly disposed of in the above terms. 5.Misc. Application No. E/Misc./241 has been filed by M/s. Adhunik Food Products Pvt. Ltd. with prayer for permission to raise additional grounds of appeals. 6.We have perused the record. These grounds are for taking on records, the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the appellant stated that they had already filed a declaration and a copy was enclosed on 19-6-1995 declaring the goods as — (a) Edible food preparations (chabena) (b) Prasad/Prasadam (c) Soya Textured Protein for the year 1994-95. A SCN was issued to the appellants on 21-3-1997 asking them to explain as to why duty amounting to Rs. 2,31,20,970/- should not be demanded from them, why interest should not be recovered and why penalty should not be imposed. The grounds set out for the above action were that 'wheat puffs' was classifiable under Chapter sub-heading 1904.10 and soya nuts were classifiable under Chapter sub-heading 2107.91/2108.99; that the appellants had not obtained Central Excise Licence and had not been observing Central Excise formalities and maintaining Central Excise records. It was also alleged that the assessee had not declared that they were manufacturing excisable goods nor had they sought any clarification about the applicability of the exemption notifications. Longer period of demand was also invoked on the ground that there was mis-declaration by supressing facts. 9.The assessee replying to the SCN submitted that there was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... process undertaken by the assessee was a process amounting to manufacture. It was, therefore, submitted that 'Puffed Wheat' and 'Puffed Soya Nuts' are manufactured products. 11.We note that in the case of School Boys Industry, Roorkee the issue before the Hon'ble Allahabad High Court was the ambit and scope of the word "Agricultural Produce" and the Hon'ble High Court held that wheat processed into puffed wheat still remains wheat. Thus we find that the question of defining manufacture was not before the Hon'ble High Court, in the case of Commissioner of Trade Tax U.P. v. National Cereal Products Ltd., the question before the Hon'ble High Court was to examine the definition of food grains/cereals and the Hon'ble High Court held that admittedly barley is a food grain, so is malt, malt or malted barley is barley which has been germinated or sprouted. It is a food grain and the same is used as a food grain even after being melted. 12.In the above two decisions the question whether a particular process, amounts to manufacture or not was not the question before the Hon'ble High Court and the cases are different and distinguishable. 13.Let us now examine the contention of the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods should be considered as 'Prasad' or 'Prasadam' or as 'other edible preparations' under heading 21.07 and under sub-heading 2107.10 and heading 2107.99 is not acceptable for the reason that 'Prasad' or 'Prasadam' is by concept an edible preparation prepared in the temple/religious place and distributed therefrom to the devotee. Such is not the case here. The goods are freely available in places other than temples. It is also not the case of the assessee/appellant that all their production of these products are sold only to temples by the assessee because there is no direct sales shown to only temples from the assessee/appellant. The argument that in any case such products are predominantly used as 'Prasad' or 'Prasadam' may not be sufficient for their classification under heading 21.07 for the reasons already stated above. In this view of the matter, the Collector (Appeals) acceptance of chiranjidana as 'Prasad' classifiable under 21.07 is also not sustainable because the Chemical Examiner was not categorical in his opinion and had required the actual practice be ascertained and it is found that these products are commercially manufactured in the factory and the assessee sells ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preparations not elsewhere specified or included classifiable earlier under Chapter heading 21.07 but now Chapter heading 21.08. Specifically under Chapter sub-heading 2108.91 carrying Nil rate of duty. It was argued for the assessee that Puffed Soya Nuts are edible preparations and since they were not specified or included elsewhere they will certainly fall either under Chapter heading 2107, 2108 of CETA, 1985. Ld. Counsel for the appellant submits that the Chapter Note 9 of Chapter 21 reads Heading No. 21.08 inter alia includes: (a) Protein concentrates and textured protein substances, and (b) Preparations for use either directly or after processing (such as cooking, dissolving or boiling in water, milk or other liquids) for human consumption. It was also argued that this is a preparation for use directly for human consumption. It was submitted by them that Puffed Soya nuts were preparations for infants use and were supplied to State Govt. or Central Govt. under Integrated Child Development Scheme. It was meant for providing healthy food to children in primary schools. It was also argued for the appellants that it was Prasad/Prasadam. We have examined the cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r sterilized or pasteurised miltone and as they were put up in unit container and were ordinarily intended for sale they appeared to be correctly classifiable under sub-heading No. 2107.91 of the Tariff and from 23-7-1996 under 2108.99. 24.We agree with the findings of the ld. Commissioner that Soya Nuts are to be categorised under S. No. 26 of Notification No. 02/94, dated 1-3-1994, as all other goods specified at S. No. 25 attracting duty at applicable rates; under S. No. 16 of Notification No. 4/93, dated 28-4-1993; under S. No. 22 of Notification No. 70/95, dated 16-3-1995. From 23-7-1996, it is classifiable under Chapter sub-heading 2108.99 attracting duty at applicable rate. 25.The present proceedings started with the visit of Central Excise Officers to the premises of M/s. Adhunik on 22-01-1997. Investigations were made thereafter and the facts as alleged in the show cause notice dated 21-3-1997 came to notice. 26.The main argument of the appellant is with regard to the limitation. A demand of Rs. 2,31,20,970.40 had been made through show cause notice dated 21-3-1997 for the period April, 1992 to Jan., 97. It is an admitted position that no information of any sort had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... persons from amongst the persons so specified, from getting themselves registered, who need not obtain such registration. Persons, who manufactured goods chargeable to nil rate of duty or which were exempt from the whole of the duty of excise leviable thereon, were exempt from the operation of Rule 174. The manufacturer on his own without any reference to the law and procedure could not exempt himself from the levy, and claim to be exempted from the operation of Rule 174 of the Rules. 29.In reply to the show cause notice, the appellants had admitted that the goods manufactured by them were excisable. They had, however, mentioned that the goods were covered by different exemption notifications. At no stage, they had sought and substantiated any claim for exemption. If an assessee claims exemption from the levy of duty under any exemption notification then it was for him to claim such an exemption and to substantiate the claim for such an exemption. 30.The goods in question were described in the contracts, orders, invoices, etc. not as Prasad/Prasadam, Chebana or Soya Textured Protein, but only for Central Excise purposes they became Prasad, Prasadam, Chabena and Soya Textured P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Products Ltd. v. CCE - 1994 (71) E.L.T. 339 (S.C.), the Hon'ble Supreme Court had held that the exemption from duty by means of a Notification did not take away the levy or had the effect of erasing the levy of duty. There is no dispute in the present case that the goods in question were excisable goods. Who had to decide whether any particular goods were covered by any exemption from payment of Central Excise Duty or not. In the case of the self-removal procedure where assessments are made by the assessee themselves, prior approval of classification/price is the corner stone upon which the edifice of Revenue is built. The facts of the present case prima facie demonstrate the mechanism for evading the payment of duty. 33.In the case of Ashwini Vanaspati Industries Pvt. Ltd. v. CCE - 1991 (56) E.L.T. 214 (Tribunal), the matter was decided mainly on the plea of the appellant that they had intimated the authorities about the fact of manufacture of soap without the aid of power, through number of letters written by them and they had repeatedly invited the Range Superintendent for verification and permission for exemption under Notification No. 28/64-C.E., dated 1-3-1964. In that cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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