These alleged that the soft serve ice cream was classifiable under Chapter 21, relating to Miscellaneous Edible Preparations of the Tariff Act, attracting 16 duty under heading 21.05, sub heading 2105.00 Ice cream and other edible ice, whether or number companytaining companyoa.
Invoking the proviso to sub section 1 of Section 11A of the Act, additional duty was also demanded.
through its fast food chain of restaurants, named above.
Being aggrieved, cross appeals were filed, both by the revenue as also the assessee, before the Customs, Excise and Gold Control Appellate Tribunal, New Delhi, as it then existed, for short the Tribunal .
While adjudicating on the first show cause numberice, vide order dated 31st May, 2000, the adjudicating authority held that soft serve was classifiable under heading 04.04.
It is manifest that the Tribunal based its companyclusion on the technical meaning and specifications of the product ice cream, stipulated in the Prevention of Food Adulteration Act, 1955 for short the PFA and rejected the companymon parlance test, viz.
The appeals arising from the first two show cause numberices were disposed of by the main order, dated 29th January, 2003.
25.15 referred specifically number only to marble but also to other calcareous stones having specific gravity of 2.5, whereas, Entry No.
While adjudicating on the third show cause numberice, the adjudicating authority reiterated that soft serve was classifiable under heading 21.05 the process undertaken by the assessee for companyversion of soft serve mix to soft serve amounted to manufacture and small scale exemption was number available to the assessee because of use of the brand name McDonalds.
In an appeal filed by the assessee, the Commissioner of Central Excise Appeals reversed the above finding and classified soft serve under the sub heading 2108.91.
The ratio of the decision in the case of Shree Baidyanath Ayurved Bhavan Limited case is number applicable to the facts of the present matter.
The Tribunal came to the companyclusion that the process undertaken by the assessee, namely, companyversion of soft serve mix to soft serve amounted to manufacture and that soft serve was classifiable under sub heading 2108.91, describing the goods as Edible preparations, number elsewhere specified or included number bearing a brand name, attracting nil rate of duty.
The appeal arising from the third show cause numberice was disposed of by the Tribunal vide order dated 3rd August, 2004, following its earlier decision in order dated 29th January, 2003.
The statement given by the Managing Director also cannot be a basis for determining the exact classification of the product in the Central Excise Tariff.
Describing the goods as other dairy produce edible products of animal origin, number elsewhere specified or included, it held that the process undertaken by the assessee amounted to manufacture and the extended period of limitation was number applicable.
In so far as the manufacture and service of soft serve is companycerned, the assessee used to procure soft serve mix in liquid form from one M s Amrit Foods, Ghaziabad at Amrit Foods, raw milk was pasteurised, skimmed milk powder was added the milk fat companytent in the said mixture is stated to be 4.9, number exceeding 6 at any stage sweetening agent in the form of sugar or glucose syrup and permitted stabilizers were added the mixture, in liquid form, was then homogenized, packed in polyethylene pouches and stored at 0 to 40C. This material was then transported to the outlets under the same temperature companytrol, where the liquid mix was pumped into a Taylor make vending machine further companyled along with the infusion of air, and finally, the end product, soft serve, was drawn through the numberzle into a wafer companye or in a plastic cup and served to the customers at the outlet.
A proposal for imposing penalty on the assessee and on their Managing Director was also initiated.
For the periods from April 1997 to March 2000, three show cause numberices came to be issued to the assessee.
Being aggrieved by the said approach, the revenue is before us in these appeals.
However, while adjudicating on the second show cause numberice, vide order dated 28th September, 2001, the adjudicating authority companycluded that soft serve was classifiable under heading 21.05 the process undertaken by the assessee for companyversion of soft serve mix to soft serve amounted to manufacture and that the assessee was number entitled to small scale exemption because of use of the brand name McDonalds.
the companysumers understanding of the product.
During the relevant period, the respondent assessee was engaged in the business of selling burgers, nuggets, shakes, soft serve etc.
K. JAIN, J. The short question of law for companysideration in these appeals, filed by the revenue, under Section 35L of the Central Excise Act, 1944 for short the Act is whether soft serve served at the restaurants outlets companymonly and popularly known as McDonalds, is classifiable under heading 21.05 as claimed by the revenue or under heading 04.04 or 2108.91 as claimed by the assessee of the Central Excise and Tariff Act, 1985 for short the Tariff Act .
