(Per : HONOURABLE MS.JUSTICE HARSHA DEVANI)
1) By this petition, the petitioners have questioned the legality and validity of the order-in-original dated 28.3.2008 passed by the Assistant Commissioner of Central Excise, Division-IV, Ahmedabad-II, confirming the duty demand as well as imposing penalty and interest.
2) The petitioner, a private limited company, is engaged in the business of manufacture of various goods including instant food mixes like Gota Mix, Khaman Mix, Dalwada Mix, Dahiwada Mix, Idli Mix, Dhokla Mix and Dhosa Mix, which are excisable goods. By Notification No.3/2006-CE dated 1.3.2006, the Central Government had granted concessional rate of excise duties of 8% ad valorem to instant food mixes. The petitioners being of the view that they were, therefore, required to pay excise duty at the rate of 8% ad valorem on the above referred food mixes manufactured by them, they paid duties accordingly and filed returns showing clearances with required details, including payment of excise duties. The present case pertains to the period from 1.3.2006 to 28.2.2007, during which period, the petitioners paid excise duties at the rate of 8% ad valorem.
3) The Preventive Officers of the Central Excise Department were of the view that the scope of serial No.28 of Notification No.3/2006-CE was only in relation to the ten varieties of food mixes referred to therein and that it was only the said varieties of food mixes that were chargeable to excise duty at the rate of 8% ad valorem and that all other varieties of instant food mixes were chargeable to normal rate of duty of 16% ad valorem.
Accordingly, show-cause notice came to be issued to the petitioners proposing demand of Central Excise duty with penalty, interest etc. In response to the show-cause notice, the petitioners filed two separate replies contending that the expression "such as" in serial No.28 of the above referred notification was illustrative and not exhaustive and, therefore, the proposal to confine the concessional rate of excise duty to ten instant food mixes described against serial No.28 was illegal. By the impugned order-in-original, the second respondent confirmed the demand of Central Excise duty amounting to Rs.4,24,095/- with equal amount of penalty as well as personal penalty of Rs.25,000/- on the second petitioner, which has given rise to the present petition.
4) Mr.
Paresh Dave, learned counsel for the petitioners invited the attention of the court to the Order-In-Appeal dated 4th February, 2009 passed by the Commissioner (Appeals) in the case of M/s. Ramdev Food Products Pvt. Ltd., wherein one of the issues under consideration was whether the benefit of notification No.03/2006-CE is available to instant food mixes like Gota mix, Khaman mix, Dalwada mix, Dahiwada mix and Dhokla mix which are not explicitly covered under the list specified at serial No.28 of the said notification. The Commissioner (Appeals) was of the view that the expression 'such as' used in column (3) at serial No.28 merely illustrates instant food mixes and was of the opinion that the enumeration of the product which follows the expression 'such as' is therefore not exhaustive but is used to give examples. He, accordingly, did not accept the Department's argument that the goods like Gota Mix, Khaman Mix, Dalwada Mix, Dahiwada Mix and Dhokla Mix are not covered under serial No.28 of table annexed to notification No.2/2006, and allowed the appeal of the assessee. It was submitted that the above order of the Commissioner (Appeals) has been accepted by the revenue and has not been carried any further. Reference was also made to the decision of the Customs, Excise and Service Tax Tribunal in the case of C.C.E, Ahmedabad Vs. R.M. Foods & Anr., 2009 (95) R.L.T 473, wherein the Tribunal has held that by virtue of Serial No.28 of Notification No.3/06-CE dated 1.03.06 instant foods are exempted and that the products manufactured by the respondent, viz., Gota Mix, Khaman Mix, Dal Wada Mix etc. which are not specified by name in the description of goods at serial No.28 of the above notification are nothing but only instant food mixes. Referring to the above notification, the Tribunal observed that after exempting instant food mixes, the notification goes to further elaborate the same by giving exemption to such mixes when it used the expression "such as". After referring to certain decisions of the Supreme Court, on the construction of the word "such as" the Tribunal held that the expression was illustrative and not exhaustive and, accordingly, upheld the order of the Commissioner (Appeals). The learned counsel submitted that such order of the Tribunal has not been carried further by the revenue and has attained finality. It was urged that the revenue having accepted the interpretation put forth by the Commissioner (Appeals) as well as by the Tribunal in the above referred cases, it would be appropriate if the matter is remanded to the Adjudicating Authority for deciding the matter afresh in the light of the above referred decisions.
5) On the other hand Mr. Y.N. Ravani, learned senior standing counsel for the respondents supported the impugned order and reiterated the reasoning adopted by the adjudicating authority.
6) Having regard to the submissions advanced by the learned counsel for the respective parties, this court is of the view that the revenue, having accepted the decision of the Commissioner (Appeals) in the case of M/s. Ramdev Food Products Pvt. Ltd. (supra) as well as the decision of the Tribunal in the case of C.C.E, Ahmedabad Vs. R.M. Foods & Anr.
(supra), the request made by the learned counsel for the petitioners to remand the matter to the Adjudicating Authority for deciding the same afresh in the light of the said decisions, appears to be reasonable and, therefore, requires to be granted.
7) In the aforesaid premises, the petition succeeds in part and is allowed to the following extent. The impugned order dated 28.3.2008 passed by the Adjudicating Authority is hereby quashed and set aside. The matter is restored to the file of the Adjudicating Authority to decide the same afresh in the light of the above referred decisions. Rule is made absolute accordingly to the aforesaid extent with no order as to costs.
(AKIL KURESHI,J.) (HARSHA DEVANI,J.) Vahid