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CX – It is not for Tribunal to enlarge the scope of an exemption notification meant for ‘wafer biscuits’ to cover ‘coated wafers’ as well – benefit of 3/2006-CX unavailable: CESTAT

2019-TIOL-2273-CESTAT-HYD

IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
REGIONAL BENCH, HYDERABAD
DIVISION BENCH
COURT NO. I

Excise Appeal No.1768/2012

Arising out of Order-in-Original No. 09/2012-Adjn. (Commr.) CE, Dated: 26.03.2012
Passed by Commissioner of Customs and Central Excise, Hyderabad-IV

Date of Hearing: 09.07.2019
Date of Decision: 06.08.2019

LITTLE STAR FOODS PVT LTD
PLOT NO. 153, IST FLOOR, PHASE-III, KAMALAPURI COLONY
HYDERABAD – 500073, TELANGANA

Vs

COMMISSIONER OF CENTRAL TAX
MEDCHAL COMMISSIONERATE, MEDCHAL GST BHAVAN
11-4-649/B, LAK DI KA POOL, HYDERABAD – 500004 TELANGANA

WITH
Excise Appeal No.1781/2012

Arising out of Order-in-Original No. 09/2012-Adjn. (Commr.) CE, Dated: 26.03.2012
Passed by Commissioner of Customs and Central Excise, Hyderabad-IV

CADBURY INDIA LTD 
C/O. LITTLE STAR FOODS PVT. LTD., D-153, PHASE-III, IDA
JEEDIMETLA, HYDERABAD – 500055 TELANGANA

Vs

COMMISSIONER OF CUSTOMS, CENTRAL EXCISE AND SERVICE TAX
HYDERABAD-IV COMMISSIONERATE, POSNETT BHAVAN TILAK ROAD
RAMKOTI, HYDERABAD-500001 TELANGANA

WITH
Excise Appeal No.20234/2014

Arising out of Order-in-Original No. 68/2013-Adjn. (Commr.) CE, Dated: 14.10.2013
Passed by Commissioner of Customs & Central Excise, Hyderabad-IV

LITTLE STAR FOODS PVT LTD
PLOT NO. 153, IST FLOOR, PHASE-III, KAMALAPURI COLONY
HYDERABAD – 500073 TELANGANA

Vs

COMMISSIONER OF CUSTOMS, CENTRAL EXCISE AND SERVICE TAX
HYDERABAD-IV COMMISSIONERATE, POSNETT BHAVAN TILAK ROAD
RAMKOTI, HYDERABAD-500001 TELANGANA

WITH
Excise Appeal No. 20235/2014

Arising out of Order-in-Original No. 68/2013-Adjn. (Commr.) CE, Dated: 14.10.2013
Passed by Commissioner of Customs & Central Excise, Hyderabad-IV

CADBURY INDIA LTD
19, BHULABHAI DESAI ROAD, MUMBAI – 400026
MAHARASHTRA

Vs

COMMISSIONER OF CUSTOMS, CENTRAL EXCISE AND SERVICE TAX
HYDERABAD-IV COMMISSIONERATE, POSNETT BHAVAN, TILAK ROAD
RAMKOTI, HYDERABAD-500001 TELANGANA

WITH
Excise Appeal No. 21160/2015

Arising out of Order-in-Original No. HYD-EXCUS-004-COM-011-14-15, Dated: 05.01.2015
Passed by Commissioner of Customs & Central Excise, Hyderabad-IV

LITTLE STAR FOODS PVT LTD
PLOT NO. 153, IST FLOOR, PHASE-III, KAMALAPURI COLONY
HYDERABAD – 500073 TELANGANA

Vs

COMMISSIONER OF CUSTOMS, CENTRAL EXCISE AND SERVICE TAX
HYDERABAD-IV COMMISSIONERATE, POSNETT BHAVAN, TILAK ROAD
RAMKOTI, HYDERABAD-500001 TELANGANA

AND
Excise Appeal No. 21173/2015

Arising out of Order-in-Original No. HYD-EXCUS-004-COM-011-14-15, Dated: 05.01.2015
Passed by Commissioner of Customs & Central Excise, Hyderabad-IV


MONDELEZ INDIA FOODS PVT LTD
(FORMERLY CADBURY INDIA LIMITED)
MONDELEZ HOUSE UNIT NO. 2001, 20TH FLOO, TOWER-3,WING C
INDIA BULLS FINANCE CENTER, PAREL, MUMBAI – 400013
MAHARASHTRA

Vs

COMMISSIONER OF CUSTOMS, CENTRAL EXCISE AND SERVICE TAX
HYDERABAD-IV COMMISSIONERATE, POSNETT BHAVAN, TILAK ROAD
RAMKOTI, HYDERABAD-500001 TELANGANA

Appellant Rep by: Shri V Lakshmi Kumaran, Sr. & Shri Vipin Verma, Advs.
Respondent Rep by: Shri V R Pawan Kumar & Shri C Mallikharjun Reddy, Supdts./ARs

CORAM: S S Garg, Member (J)
P V Subba Rao, Member (T)

CX – Assessee manufactures ‘Cadbury perk with glucose energy’ and supplies them to Mondelez on job work basis – The products are, thereafter, sold by Mondelez from their depots through their marketing chain – Mondelez is the brand owner of products – The entire manufacture by assessee is as per the specifications and directions of Mondelez in their agreement – Assessee claimed the classification of their products under 1905 3290 of Central Excise tariff – Initially, a SCN was issued to assessee covering the period October 2009 to September 2010 proposing to classify the product under 1905 3211 and demanding appropriate amount of differential duty – It is not in dispute that assessee has manufactured coated wafers and cleared them – The goods were not described as “wafer biscuits” either to the department or in the invoices or on the wrappers of the product – Therefore, both the Revenue and everyone in the trade including the consumer understands them as wafers or coated wafers and not as wafer biscuits – The interpretation of exemption notification has to be done strictly giving the benefit of any ambiguity in exemption notification to the Revenue and against the assessee as has now been laid down by the Constitutional Bench of Apex Court in case of Dilip Kumar & Company and others – 2018-TIOL-302-SC-CUS-CB – Thus, Tribunal found nobody in the chain of trade from the manufacturer to the ultimate consumer know the products as ‘wafer biscuits’ but know them only called as coated wafers – It is not for this Tribunal to enlarge the scope of an exemption notification meant for ‘wafer biscuits’ to cover ‘coated wafers’ as well – In terms of ratio laid down by Apex Court in case of Dilip Kumar and Company & others, assessee is not entitled to the benefit of exemption notfn 03/2006 – Coming to the question of valuation, it is not in dispute that the assessee is manufacturing goods on job work basis and are therefore covered by Rule 10A of CEVR, 2000.

It is also not in dispute that the assessee paid duty based on the values declared by Mondelez – These values are reflected in the price list – The only point of dispute are the three elements which the Adjudicating Authority sought to include in assessable value i.e. the Dealer’s margin, RD Markup and Post Manufacturing expenses – As far as the dealer’s margin is concerned, the dealer’s margin cannot be included in assessable value – In a commodity which costs Rs. 2/- per piece, it is inconceivable that M/s Mondelez was selling these goods directly to individual retailers across the country – Therefore, there is no room for disallowing dealer’s margin as a deduction – As far as the RD Mark up is concerned, there is no evidence on record to show that this actually pertains to R&D expenses – Therefore, inclusion of R&D mark up in assessable value is not sustainable and it deserves to be set aside – As far as the PME is concerned, inclusion of these expenses depends upon the nature of the post manufacturing expenses – In case where these are expenses incurred upto the place of removal, the same have to be included in assessable value – However, if these represent other expenses such as cheque discounting charges, they cannot be included in assessable value, as has been held by Tribunal in their own case – This is a fact which can be verified by adjudicating authority based on any evidence that may be provided by assessee.

Once all facts were noted in department and the department has come to some tentative conclusion regarding classification and valuation under section 4A of the Central Excise Act and thereafter after a period of one year based on the same facts issued a different SCN, coming to a different set of conclusion, all that can be said, it was a question of interpretation which the department itself was not sure about it – Therefore, the demand of extended period of limitation cannot be sustained – The penalties imposed under Section 11AC are set aside – As far as penalty under Rule 26 upon Mondelez is concerned, no grounds found to uphold the penalties imposed upon Mondelez, as the elements of fraud, collusion, wilful misstatement, suppression of facts or violation of act of Rules with an intent to evade payment of duty, have not been established: CESTAT

Appeals disposed of

Case laws cited:

M/s Little Star Foods Pvt. Ltd – 2013-TIOL-2570-CESTAT-BANG… Para 1

International Foods vs. CCE, Hyderabad [1978(2)ELT (J 50) (A.P.)]… Para 9

R. Sikaria vs. CCE, Hyderabad [2000(125)ELT 141 (A.P)]… Para 9

(Cadbury India Limited)[2015(323) ELT 606 (Tri.-Del.)]… Para 13

Commissioner of Customs (Import) Mumbai vs. Dilip Kumar & Company – 2018-TIOL-302-SC-CUS-CB… Para 18

FINAL ORDER NOS. A/30714-30719/2019

Per: P Venkata Subba Rao:

1. These six appeals pertain to the same issue and hence are being disposed of together. Appeal No. E/1768/2012 is filed by M/s Little Star Foods Pvt. Ltd. = 2013-TIOL-2570-CESTAT-BANG (hereinafter referred to Little Star) while appeal No. E/1781/2012 is filed by Mondelez India Foods Pvt. Ltd. (hereinafter referred to Mondelez) (previously called Cadbury India Limited) against the demands raised covering the period October 2009 to September 2011. The remaining appeals are for the subsequent periods. The details are as follows:

Appeal No.E/1768/2012 & E/1781/2012E/20234- 20235/2014E/21160/2015 & E/21173/2015
Period involvedOct. 2009 to Sept. 2011Oct. 2011 to August 2012Sept. 2012 to Sept. 2013
Demand in Rs.Rs. 5,66,51,110/- + Interest Penalty 5,66,51,110Rs. 1,17,10,253/- + Interest Penalty- 30,00,000/-Rs. 2,64,09,290/- + interest Penalty- 50,00,000/-
Penalty on MondelezRs. 2,00,00,000/-Penalty of Rs. 30,00,000/-Penalty of Rs. 50,00,000/-
Amounts paidRs. 2,04,80,588/-

2. The issues which fall for consideration in these appeals are:

(a) whether Little Star is entitled to the benefit of exemption Notification No. 03/2006 (Sl. No. 19) for the goods “Cadbury Perk with Glucose Energy” manufactured by them on behalf of M/s Mondelez;

(b) whether the dealer’s margin, RD markup and post manufacturing expenses claimed by the appellant in their price list but included in the assessable value by the original authority need to be included for determining the excise duty payable or otherwise;

(c) whether the extended period of limitation for raising the demand under section 11A can be invoked in respect of appeals No. E/1768/2012 and E/1781/2012;

(d) whether the differential duty is recoverable along with interest from the appellants and if so to what extent;

(e) whether penalties have been correctly imposed upon Little Star and

(f) whether penalties have been correctly imposed upon Mondelez.

3. The facts of the case in brief are that Little Star manufactures ‘Cadbury perk with glucose energy’ and supplies them to Mondelez on job work basis. The products are, thereafter, sold by Mondelez from their depots through their marketing chain. Mondelez is the brand owner of the products. The entire manufacture by Little Star is as per the specifications and directions of Mondelez in their agreement. Being the manufacturers of the products, Little Star discharges Central Excise duty. Little Star claimed the classification of their products under 1905 3290 of Central Excise tariff. The relevant entry is as follows:

1905BREAD, PASTRY, CAKES, BISCUITS AND OTHER BAKERS’ WARES, WHETHER OR NOT CONTAINING COCOA; COMMUNION WAFERS, EMPTY CACHETS OF A KIND SUITABLE FOR PHARMACEUTICAL USE, SEALING WAFERS, RICE PAPER AND SIMILAR PRODUCTSKgNil
1905 10 00CrispbreadKgNil
1905 20 00-Gingerbread and the like -Sweet biscuits; waffles and wafers:KgNil
1905 31 00Sweet biscuitsKg6%
1905 32-Waffles and wafers -Communion wafers:  
1905 32 11Coated with chocolate or containing chocolateKg12.5%
1905 32 19OtherKg12.5%
1905 32 90OtherKg12.5%
1905 40 00Rusks, toasted bread and similar toasted productsKgNil
1905 90Other:KgNil
1905 90 10Pastries and cakesKg6%
1905 90 20Biscuits not elsewhere specified or includedKg6%
1905 90 30Extruded or expanded products, savoury or saltedKgNil
1905 90 40PapadKgNil
1905 90 90OtherKgNil

4. Initially, a show cause notice dated 08.11.2011 was issued to the appellants covering the period October 2009 to September 2010 proposing to classify the product under 1905 3211 and demanding appropriate amount of differential duty. It was also proposed in that show cause notice that the product deserved to be valued under section 4A instead of Section 4 of Central Excise Act, 1944. Thereafter, another show cause was issued to the appellant covering the period October 2009 to September 2011. In this second show cause notice, the department did not contest either classification by the appellant or the fact that they are not covered by Section 4A but are covered by Section 4 for the purpose of valuation. The second show cause notice only sought to deny the exemption notification claimed by the appellant and also sought to value the goods under section 4 of Central Excise Act, 1944 as per the price list denying some exclusions claimed by the appellant. Both the show cause notices were decided by Ld. Adjudicating authority vide O-I-O No. 09/2012-Adjn. (Commr.) CE, dt. 26.03.2012. He dropped the proceedings in pursuance of the first show cause notice. Therefore, the dispute with regard to the classification and valuation under section 4A instead of under Section 4 have reached finality. The adjudicating authority has also held that their products are classifiable under chapter heading 1905 3290 and that their products are not covered under section 4A and therefore are chargeable as per valuation under section 4. The subsequent show cause notices are periodical demands which have been confirmed by the Adjudicating authority and are in challenge in these appeals.

5. Accordingly, the differential duty was demanded and confirmed along with interest by (a) denying them the benefit of exemption notification No. 3/2006 (Sl.No. 19) and (b) denying them the deduction from their price of the dealer’s margin, RD mark up and post manufacturing expenses from the assessable value. Penalties have been imposed upon Little Star under section 11 AC of the Central Excise Act and on Mondelez under Rule 26 of Central Excise Rules, 2002.

6. Before examining the rival contentions made on both sides, it will be necessary to set out the relevant legal provisions.

(a) Excise duty on tobacco and other goods manufactured in India except alcoholic liquor for human consumption, opium and other narcotic drugs are included in the union list in the Constitution of India (list-1 of Seventh Schedule of the Constitution). The relevant statute for levy of these excise duties is as the Central Excise Act, 1944. Section 3 of this Act is the charging section which states “there shall be levied and collected in such a manner as may be prescribed a duty of excise to be called Central Value Added Tax on excisable goods which are produced or manufactured in India as, and at the rates, set forth in Schedule-I of the Central Excise Tariff Act ……….”.

(b) The term ‘Excisable goods’ has been defined as “goods specified in the first schedule and the second schedule to the central Excise Tariff Act as being subject to a duty of excise and includes salt” (Section 2(d) of the Act). The duty of excise is leviable either based on quantity (specific rate of duty) or value (ad valorem rate of duty) as specified in the tariff. However, in respect of the goods which are notified under section 4A of the Central Excise Act, the duty is levied based on the retail sale price with some abatement.

(c) Section 5A of Central Excise Act empowers the Central Government to grant, by notification, exemptions from the Central Excise duties. These exemptions can be either full or partial and can be either conditional or unconditional.

(d) To sum up, if any excisable goods are manufactured or produced in the country, they are chargeable to Central Excise duties at the rates set forth in the schedules to Central Excise Tariff Act, 1985, read with any exemption notifications that may apply.

(e) Where the excise duty has to be levied based on the value, the value shall be determined as per Section 4 of Central Excise Act and the Central Excise Valuation Rules.

(f) Where any duty of excise has not been levied or paid or short levied or short paid or erroneously refunded, the same can be recovered by raising a demand under Section 11A of the Act. Further, if such non-levy, short-levy, non-payment, short-payment or erroneous refund is by reason of fraud or collusion or any wilful misstatement or suppression of facts or contravention of any provision of the Act or Rules made thereunder with intent to evade payment of duty, the demand can be raised within an extended period of limitation of five years from the relevant date.

7. In these appeals, it is not in dispute that the excisable goods have been manufactured and they are leviable to Central Excise duty at the rates set forth in the Central Excise Tariff and that the valuation of these goods is covered by Section 4 read with Central Excise Valuation Rules. The initial contention of the Revenue in the first show cause notice that these goods are notified under Section 4A and hence chargeable to duty based on retail sale price, has been dropped by the Commissioner in his Order-in-Original and the decision of the Commissioner has been contested by the Revenue. Therefore, the only disputes which remain in this case are:

(i) whether the assessees are eligible for exemption notification No. 3/2006 (S.No. 19) issued under Section 5A claimed by them which is sought to be denied by the Revenue;

(ii) what value should be adopted for reckoning the Central Excise duty;

(iii) Whether extended period of limitation under Section 11A can be invoked for raising the demand and

(iv) whether penalties are imposable upon the appellants.

8. On the question of exemption notification, Ld. Counsel for the appellants submits that it is undisputed that Little Star are manufacturing “Cadbury Perk with Glucose Energy” which has been described by them as ‘chocolate coated wafers for some period and subsequently as coated wafers. He produces before us a sample copy of the product, the label of which also describes the product as ‘coated wafers’. He explains that in the coating, they have been using only coco powder but not coco butter and therefore the same cannot be called as chocolate coating and hence they described the product as coated wafers. The relevant entry (Sl.No. 19) in exemption notification 3/2006 reads as follows:

“EFFECTIVE RATES OF DUTY FOR GOODS OF VARIOUS CHAPTERS

GENERAL EXEMPTION No. 46

Exemption and effective rate of duty for specified goods of Chapters 1 to 24 – in exercise of the powers conferred by Sub Section (1) of Section 5A of the Central Excise Act, 1944 (1 of 1944), the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby exempts excisable goods of the description specified in column (3) of the Table below and falling within the Chapter, heading or sub heading or tariff item of the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) (hereinafter referred to as the Central Excise Tariff Act), as are given in the corresponding entry in column (2) of the said Table, from so much of the duty of excise specified thereon under the First Schedule to the Central Excise Tariff Act, as is in excess of the amount calculated at the rate specified in the corresponding entry in column (5) of the Table aforesaid.

Explanation. – for the purposes of this notification, the rates specified in column 4 of the said Table are ad valorem rates, unless otherwise specified.

TABLE

S.No.Chapter or heading or sub heading or tariff item of the First ScheduleDescription of excisable goodsRateCondition No.
(1)(2)(3)(4)(5)
191905 32 19 or 1905 32 90Wafer biscuits4%

9. Ld. Counsel submits that the classification of their product is not in dispute and the department has accepted the classification under chapter heading 1905 32 90 and there is no condition for availing the benefit of this exemption notification. The description of the product for which the exemption is available is ‘wafer biscuits’ whereas they described their product as chocolate coated wafers or coated wafers and therefore the Revenue sought to deny them the benefit of exemption notification. He asserts that all wafers are essentially biscuits and therefore their wafers must be considered as ‘wafer biscuits’ and they should be entitled to the benefit of exemption notification No. 03/2006. He relies on the case laws of International Foods vs. CCE, Hyderabad [1978(2)ELT (J 50) (A.P.)] and R. Sikaria vs. CCE, Hyderabad [2000(125)ELT 141 (A.P)] in which the Hon’ble High Court of Andhra Pradesh having jurisdiction over this Bench, had held that wafer is a kind of biscuit although it may be different in size and in shape and therefore the same is chargeable to Central Excise duty in terms of item (1)(c) of the erstwhile Central Excise Tariff. He would assert that the jurisdictional Hon’ble High Court has already decided that wafer is indeed a biscuit and this decision of Hon’ble High Court is binding on this Bench and therefore they cannot be denied the benefit of exemption available to wafer biscuits. He also cites the Cambridge dictionary which explains the meaning of ‘wafer’ as under:

” noun

(1) A thin, crisp cake or biscuit, often sweetened and flavoured.

(2) A thin disk of unleavened bread, used in the Eucharist, as in the Roman Catholic Church.

(3) A thin disk of dried paste, gelatin, adhesive paper, or the like, used for sealing letters, attaching papers etc.

(4) Medicine/Medical. A thin sheet of dry paste or the like, used to enclose a powder to be swallowed.

(5) Any small, thin disk, as a washer or piece of insulation.”

He also cites the Oxford dictionary’s meaning of ‘ wafer ‘ as under:

” A thin, light, crisp biscuit, especially one of a kind eaten with ice cream.

– A thin piece of something. ‘wafers of smoked salmon’ Synonyms

1. A thin disc of unleavened bread used in the Eucharist.

2. Electronics A very thin slice of a semiconductor crystal used as the substrate for solid-state circuitry.

Synonyms

3. (also wafer seal) a disc of red paper stuck on a legal document as a seal.

4. historical A small disc of dried paste used for fastening letters or holding papers together.

VERB [WITH OBJECT]archaic

– Fasten or seal (a letter or document) with a wafer.

Derivatives wafery adjective.

Origin

Late Middle English from an Anglo-Norman French variant of Old French gaufre (see goffer), from Middle Low German wāfel ‘waffle’; compare with waffle. Compare with WAFFLE.”

He further cited description of “waffles and wafers” in the HSN as under:

“Waffles and wafers, which are light fine bakers’ wares baked between patterned metal plates. This category also includes thin waffle products, which may be rolled, waffles consisting of a tasty filling sandwiched between two or more layers of thin waffle pastry, and products made by extruding waffle dough through a special machine (ice cream cornets, for example). Waffles may also be chocolatecovered. Wafers are products similar to waffles.”

10. On the question of valuation, he would take us through the impugned Order-in-Original No. 09/2012-Adjn. (Commr.) CE, dt. 26.03.2012 and explain that in their case there is no transaction value because they do not sell the goods but manufacture them on job work basis. Little Star manufactures the goods on job work basis for Mondelez and supplies them directly to the depots of the latter. Mondelez, in turn, sells the goods through their marketing net work. Little Star gets their job work charges. Section 4 of the Central Excise Act reads as follows:

“Section 4 in the Central Excise Act, 1944

4. Valuation of excisable goods for purposes of charging of duty of excise.—

(1) Where under this Act, the duty of excise is chargeable on any excisable goods with reference to their value, then, on each removal of the goods, such value shall—

(a) in a case where the goods are sold by the assessee, for delivery at the time and place of the removal, the assessee and the buyer of goods are not related and the price is the sole consideration for the sale, be the transaction value;

(b) in any other case, including the case where the goods are not sold, be the value determined in such manner as may be prescribed.

Explanation.—For the removal of doubts, it is hereby declared that the pricecum- duty of the excisable goods sold by the assessee shall be the price actually paid to him for the goods sold and the money value of the additional consideration, if any, flowing directly or indirectly from the buyer to the assessee in connection with the sale of such goods, and such price-cum-duty, excluding sales tax and other taxes, if any, actually paid, shall be deemed to include the duty payable on such goods.

(2) The provisions of this section shall not apply in respect of any excisable goods for which a tariff value has been fixed under sub-section (2) of section 3.

(3) For the purposes of this section,—

(a) “assessee” means the person who is liable to pay the duty of excise under this Act and includes his agent;

(b) persons shall be deemed to be “related” if—

(i) they are inter-connected undertakings;

(ii) they are relatives;

(iii) amongst them the buyer is a relative and distributor of the assessee, or a subdistributor of such distributor; or

(iv) they are so associated that they have interest, directly or indirectly, in the business of each other. Explanation.—In this clause—

(i) “inter-connected undertakings” shall have the meaning assigned to it in clause (g) of section 2 of the Monopolies and Restrictive Trade Practices Act, 1969 (64 of 1969); and

(ii) “relative” shall have the meaning assigned to it in clause (41) of section 2 of the Companies Act, 1956 (1 of 1956);

(c) “place of removal” means —

(i) a factory or any other place or premises of production or manufacture of the excisable goods;

(ii) a warehouse or any other place on premises wherein the excisable goods have been permitted to be deposited without payment of duty;

(iii) a depot, premises of a consignment agent or any other place or premises from where the excisable goods are to be sold after their clearance from the factory;] from where such goods are removed;

4[(cc) “time of removal”, in respect of the excisable goods removed from the place of removal referred to in sub-clause (iii) of clause (c), shall be deemed to be the time at which such goods are cleared from the factory;

(d) “transaction value” means the price actually paid or payable for the goods, when sold, and includes in addition to the amount charged as price, any amount that the buyer is liable to pay to, or on behalf of, the assessee, by reason of, or in connection with the sale, whether payable at the time of the sale or at any other time, including, but not limited to, any amount charged for, or to make provision for, advertising or publicity, marketing and selling organization expenses, storage, outward handling, servicing, warranty, commission or any other matter; but does not include the amount of duty of excise, sales tax and other taxes, if any, actually paid or actually payable on such goods.”

11. He would submit that since the goods are not sold by them, they are not covered by Section 4(1)(a) but are covered by Section 4(1)(b). The prescription mentioned in 4(1)(b) is as per the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000, Rule 10A of these Rules is relevant to their case which reads as follows:

“RULE 10A. Where the excisable goods are produced or manufactured by a job-worker, on behalf of a person (hereinafter referred to as principal manufacturer), then, –

i. in a case where the goods are sold by the principal manufacturer for delivery at the time of removal of goods from the factory of job-worker, where the principal manufacturer and the buyer of the goods are not related and the price is the sole consideration for the sale, the value of the excisable goods shall be the transaction value of the said goods sold by the principal manufacturer;

ii. in a case where the goods are not sold by the principal manufacturer at the time of removal of goods from the factory of the job-worker, but are transferred to some other place from where the said goods are to be sold after their clearance from the factory of job-worker and where the principal manufacturer and buyer of the goods are not related and the price is the sole consideration for the sale, the value of the excisable goods shall be the normal transaction value of such goods sold from such other place at or about the same time and, where such goods are not sold at or about the same time, at the time nearest to the time of removal of said goods from the factory of job-worker;

iii. in a case not covered under clause (i) or (ii), the provisions of foregoing rules, wherever applicable, shall mutatis mutandis apply for determination of the value of the excisable goods : Provided that the cost of transportation, if any, from the premises, wherefrom the goods are sold, to the place of delivery shall not be included in the value of excisable goods.

Explanation. – For the purposes of this rule, job-worker means a person engaged in the manufacture or production of goods on behalf of a principal manufacturer, from any inputs or goods supplied by the said principal manufacturer or by any other person authorised by him.”

12. Little Star have, indeed, paid the duty on the value at which the principal manufacturer Mondelez has sold the goods to their buyers. Since Mondelez gets such goods manufactured by a large number of firms across the country, they have a uniform method of pricing the goods which is set out in the price list prepared by them. This price list has been re-produced in the impugned Order-in-Original No. 09/2012-Adjn. (Commr.) CE, dt. 26.03.2012 at para 20.13, which is as follows:

13. The entire demand has been raised based on the figures indicated in this price list itself. As can be seen, the price list indicates the consumer end price and various margins at various levels and indicates the invoice price which is the price at which the depots sell to the distributors including taxes. If the excise duty, Cess and post manufacturing expenses are deducted from this invoice price, we get the assessable value of Rs. 78.04 for a pouch of 55 retail packs which, according to him, is the correct invoice price which is adopted by Mondelez and the same should be adopted for determining the tax liability of Little Star as well. In para 20.15 of the impugned order, Ld. Commissioner sought to include dealer margin, RD Markup and the post manufacturing expenses in the assessable value. As far as the Dealer margin is concerned, Ld. Commissioner held that the dealer is the assesse’s own place of removal or otherwise, it would have been reflected as retailer margin. Ld. Counsel would submit that this conclusion is preposterous. They have dealers as well as retailers and redistributors in their chain of net work. The re-distributor who buys from the depot cannot be the same as the retailer who sells it to the consumer. There is no evidence to show that the retailer is the same as the dealer and it is extremely unlikely that in a product with a retailer price of Rs. 2/- per piece, the retailer is the one who goes to the depots of the manufacturer and buys the goods from them. Therefore, the dealer’s margin is to be excluded from the value. As far as the RD Markup is concerned, Ld. Commissioner presumed that this is an amount set aside for R&D purpose by M/s Cadbury (Mondelez) and held that the same is includable in the assessable value. Ld. Counsel for the appellant submits that there is nothing on record to show that RD Markup being the R&D expenses. In fact, RD Markup stands for re-distributor mark up. The re-distributors form part of their marketing chain and they get this margin for their service. Therefore, the same cannot be included in the assessable value. As far as the third item sought to be included in the assessable value by Ld. Commissioner is concerned, Ld. Counsel would submit that the post manufacturing expenses are actually nothing but cheque discounting charges which they paid to their banks. He would submit that the cheque discounting charges have been held by the Tribunal in their own case(Cadbury India Limited) to be admissible deduction as reported at [2015(323) ELT 606 (Tri.-Del.)]. He also produces copies of agreements which they had with their re-distributors in support of his contention that they indeed had re-distributors who were given a margin.

14. As far as the first period covering October 2009 to September 2010 is concerned, he would submit that the first show cause notice issued by the Department on 08.11.2010 and the second one on 08.11.2011 invoking the extended period of limitation under section 11A. Section 11A of Central Excise Act permits invocation of extended period only if the elements necessary for invoking the extended period namely fraud, collusion, wilful misstatement, suppression of facts or violation of the provisions of the Act or Rules with an intent to evade payment of duty are present. It is on record that all facts are presented before the department. The returns were filed periodically and honestly by them. The first show cause notice dated 08.11.2010 was issued within the normal period of limitation proposing to classify the products under different tariff heading and valued them as per Section 4A based on retail sale price. This shows that the department was fully aware of what they are doing and they have taken a particular view and issued show cause notice accordingly. Using the same information but proposing a different classification and a different method of valuation, the second show cause notice was issued invoking the extended period of limitation. This shows that there was no element necessary for invoking the extended period of limitation because all facts were known to the department before the first show cause notice was issued. Therefore, the extended period of limitation cannot, in any case, be invoked in the second show cause notice. The demand has to fail to that extent on this ground also. Ld. Counsel also produced before us copies of letters written by the assessee to the Central Excise Officers informing them about the nature of their products.

15. On the question of imposition of penalty, he would urge that the entire matter is nothing but a question of interpretation of the eligibility of exemption notification as well as the valuation. No facts were either actively suppressed or not disclosed to the department. On the question of interpretation itself, they held a consistent view but the department changed its stand. Penalty under section 11AC can be imposed where duty has not been paid or short paid or not levied or short levied or erroneously refunded or by an act of fraud, collusion, wilful mistatement, suppression of facts or contravention of any provisions of the Act or Rules with an intent to evade payment of duty. Since none of these elements are provided/established, no penalty can be imposed upon them under Section 11 AC. As far as the penalty imposed upon M/s Mondelez under Rule 26 of Central Excise Rules, 2002 is concerned, he would draw the attention of this Bench to this rule which reads as follows:

“26. Penalty for certain offences.-

[(1) Any person who acquires possession of, or is in any way concerned in transporting, removing, depositing, keeping, concealing, selling or purchasing, or in any other manner deals with, any excisable goods which he knows or has reason to believe are liable to confiscation under the Act or these rules, shall be liable to a penalty not exceeding the duty on such goods or rupees [two thousand rupees,] whichever is greater.]

[Provided that where any proceeding for the person liable to pay duty have been concluded under clause (a) or clause (d) of sub-section (1) of section 11AC of the Act in respect of duty, interest and penalty, all proceedings in respect of penalty against other persons, if any, in the said proceedings shall also be deemed to be concluded.]

[(2) Any person, who issues-

(i) an excise duty invoice without delivery of the goods specified therein or abets in making such invoice; or

(ii) any other document or abetsin making such document, on the basis of which the user of said invoice or document is likely to take or has taken any ineligible benefit under the Act or the rules made there under like claiming of CENVAT credit under the CENVAT Credit Rules, 2004 or refund,

shall be liable to a penalty not exceeding the amount of such benefit or five thousand rupees, whichever is greater.]”

16. Ld. Counsel would submit that none of the elements necessary for invocation of Rule 26 as above have been proved or established in their case, therefore the penalty imposed on Mondelez under Rule 26 needs to be set aside. He would draw the attention of the Bench to para 23.2 of the impugned order which reads as follows:

“Regarding penalty proposed on M/s Cadbury India Limited under Rule 26, it is seen that they are the principal manufacturers of the impugned goods. The said rule stipulates that any person who acquires possession of, or is in any way concerned in transporting, removing, depositing, keeping, concealing, selling or purchasing, or in any other manner deals with, any excisable goods which he knows or has reason to believe are liable to confiscation under the Act or these rules, shall be liable to a penalty not exceeding the duty on such goods or rupees [two thousand rupees,] whichever is greater.] Obviously, the assessees are only job workers for CIL and act on their instructions or otherwise they would lose their livelihood. Moreover, CIL is a multi-national company having their own legal cell and are expected to possess wide knowledge of the provisions. Accordingly, it can be said that they are well aware that the impugned goods do not fall under the category of “wafer biscuits” nor they would get the benefit of deductions claimed by them. By their own admission, the goods are ‘coated wafers’ and that valuation is required to be done under Rule 10A, which required the depot invoices to be submitted by them to the Department and LSFPL cannot do anything about it. However, they failed to submit the same even by the date of passing of this order, which indicates that they have something to suppress in the matter. Thus, they have flaunted an irresponsible attitude of defiance and blatant non-compliance of the provisions, which they knew or believed, can lead to confiscation of the impugned goods. In this regard, their contention that they have not provided any incorrect data is not acceptable since the price list data is not the proper data to arrive at the AV as per the provisions applicable to the case on hand. Also, since they have received and distributed/sold the impugned goods, which they knew are misclassified/undervalued (by their own admissions regarding description of goods and declaration that they will follow Section 4 r/w Rule 10A and are liable for confiscation, the provisions of Rule 26 are squarely applicable in their case. As such, for the reasons discussed supra, the impugned goods are liable for confiscation (which is not being done for want of seizure of the goods) and consequently, CIL would be liable for penalty as provided under the said Rule.”

17. He would assert that the only dispute is regarding the interpretation by the department as opposed to the interpretation of the appellants and therefore no penalty can be imposed under Rule 26 of Central Excise Rules, 2002.

18. Ld. DR reiterates the statements and arguments made in the impugned order. He agrees that the only two points of dispute on merit are (a) whether the appellants are entitled to the benefit of exemption notification 3/2006 (Sl.No. 19) for “Cadbury perk with glucose energy” manufactured by them and (b) whether the dealer’s margin, re-distributors margin, post manufacturing expenses have to be included in the assessable value or otherwise. There is no dispute regarding the classification of the product or that it deserves to be asserted under section 4 and Rule 10A of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000. On the first point of availability of exemption notification, he asserts that a plain reading of the exemption notification shows that it is not available to all goods which may fall under chapter heading 1905 3290 but to only “wafer biscuits”. If the intention had been to give the benefit of exemption to any goods which falls under the heading, the description of the goods in the notification would have been “all goods” similar to some other entries in the same exemption notification such as S.No. 26, 26B, 27 etc. This brings the question whether the goods which are cleared by the appellant are “wafers biscuits” or otherwise. ER-1 returns filed by the appellant that the department described the goods as ‘chocolate coated wafers’ (for some period) or ‘coated wafers’. The invoices are also described the product so. The wrappers of the product also indicates them as coated wafer layers. It nowhere specifies that these are ‘wafer biscuits’. Therefore, neither has the appellant had at any point of time described the product as ‘wafer biscuits’ to the department nor has the product has been so described in any of the documents. Everyone from the manufacturer down to the ultimate consumer in the market understand the disputed products as coated wafers or chocolate coated wafers and NOT as wafer biscuits. It is quite evident that when the wrapper describes them as coated wafers, the dealers, retailers and consumer will not understand them as ‘wafer biscuits’. Even till date, the appellant continues to describe their product as coated wafers and not as “wafer biscuits”. That leads us to the next question whether wafers are same as wafer biscuits or otherwise. Ld. Counsel for the appellant had relied on the judgment of Hon’ble High Court of Andhra Pradesh in the case of International Foods (supra) and R. Sikaria (supra). A plain reading of both these judgments show that the question as to whether ‘wafers can be charged to Central duty under the category of biscuits under the erstwhile Central Excise Tariff”. Ld. DR submits that prior to 1985 (when the Central Excise tariff Act was passed), there was an old Central Excise tariff which was not based on HSN. It only had a list of items and the rates at which excise duty has to be collected. The question in both these judgments of Hon’ble High Court was whether the wafers can also be charged to central excise duty at the rates applicable to biscuits in that particular tariff. The Hon’ble High Court has held that wafers are in essence biscuits and can be so charged. The judgments were not in the context of the new Central Excise tariff which is a detailed and elaborate one nor is it in the context of interpreting the exemption notification. He further argues that exemption notifications were interpreted in a number of ways, some strictly and some liberally by various judicial fora including by the Hon’ble Apex Court. In view of the conflicting decisions, the matters were referred to the Constitutional Bench of Hon’ble Apex Court in the case of Commissioner of Customs (Import) Mumbai vs. Dilip Kumar & Company & others as reported in – 2018-TIOL-302-SC-CUS-CB in which the Hon’ble Apex Court held as follows:

“To sum up, we answer the reference holding as under:

(1) Exemption notification should be interpreted strictly; the burden of proving applicability would be on the assessee to show that his case comes within the parameters of the exemption clause or exemption notification.

(2) When there is ambiguity in exemption which is subject to strict interpretation, the benefit of such ambiguity cannot be claimed by the subject/assessee and it must be interpreted in favour of the revenue.

(3) The ratio in Sun Export case (supra) is not correct and all the decisions which took similar view as in Sun Export case (supra) stands overruled.”

19. He would submit that any exemption notification being an exception to the general rule that tax must be paid at the rates in the tariff, must be interpreted strictly. If there is an ambiguity as to whether an exemption notification is applicable or otherwise, the benefit of doubt must go in favour of the Revenue and against the assessee as per the law laid down by the Constitutional Bench of Hon’ble Apex Court in the landmark judgment above. He would urge that in this case, there is absolutely no ambiguity at all that the goods which are being manufactured are coated wafers and they are described as such by the assessee to their consumers and to the department in their returns and in all other documents. Nowhere have been described as wafer biscuits. Therefore, the exemption available to wafer biscuits only cannot be extended to get wafers manufactured by the appellant.

20. On the question of valuation, he would submit that the Ld. Commissioner has recorded quite clearly that the assessee has not produced the depot invoices at which the goods are sold and therefore the Ld. Commissioner has, in the impugned order, relied on the price list of M/s Mondelez and calculated their assessable value correctly. He also asserted that the extended period of limitation has been correctly invoked and penalties need to be upheld.

21. We have considered the arguments on both sides and perused the records. It is not in dispute that the appellant has manufactured coated wafers (described for some time also as chocolate coated wafers) and cleared them. The goods were not described as “wafer biscuits” either to the department or in the invoices or on the wrappers of the product. Therefore, both the Revenue and everyone in the trade including the consumer understands them as wafers or coated wafers and not as wafer biscuits. It is true that wafer is technically a thin biscuit by itself. Therefore, in the context of the erstwhile Central Excise tariff, the Hon’ble High Court of Andhra Pradesh has held that the same can be charged to Central Excise Duty on the tariff item 1(C) as biscuits. However, this judgment was not in the context of either the new Central Excise Tariff or on how to interpret the exemption notification. The interpretation of exemption notification has to be done strictly giving the benefit of any ambiguity in the exemption notification to the Revenue and against the assessee as has now been laid down by the Constitutional Bench of Hon’ble Apex Court in the case of Dilip Kumar & Company and others (supra). A plain reading of the exemption notification does not show that it is intended to cover all products covered by the tariff heading 1905 3290 or wafers (coated or uncoated) falling under tariff heading. It specifically includes only wafer biscuits falling under tariff heading. If the intention of the notification was to exempt ‘wafers’ also, it would have said so. The assessees’ products are not described as ‘wafer biscuits’ by the assessee themselves either to the department or in any of the documents or to the ultimate consumers on their wrappers. Thus, we find nobody in the chain of trade from the manufacturer to the ultimate consumer know the products as ‘wafer biscuits’ but know them only called as coated wafers. It is not for this Tribunal to enlarge the scope of an exemption notification meant for ‘wafer biscuits’ to cover ‘coated wafers’ as well. Even if it is held that ‘wafers’ could possibly be broadly considered as wafer biscuits, the matter is definitely not free from doubt/ambiguity. Under these circumstances, in terms of ratio laid down by the Hon’ble Apex Court in the case of Dilip Kumar and Company & others, we have no option but to hold that the assessee is not entitled to the benefit of exemption notification No. 03/2006.

22. Coming to the question of valuation, it is not in dispute that the assessee is manufacturing the goods on job work basis and are therefore covered by Rule 10A of Central Excise Valuation (Determination of price of Excisable Goods) Rules, 2000. This rule reads as follows:

“RULE 10A. Where the excisable goods are produced or manufactured by a job-worker, on behalf of a person (hereinafter referred to as principal manufacturer), then, –

i. in a case where the goods are sold by the principal manufacturer for delivery at the time of removal of goods from the factory of job-worker, where the principal manufacturer and the buyer of the goods are not related and the price is the sole consideration for the sale, the value of the excisable goods shall be the transaction value of the said goods sold by the principal manufacturer;

ii. in a case where the goods are not sold by the principal manufacturer at the time of removal of goods from the factory of the job-worker, but are transferred to some other place from where the said goods are to be sold after their clearance from the factory of job-worker and where the principal manufacturer and buyer of the goods are not related and the price is the sole consideration for the sale, the value of the excisable goods shall be the normal transaction value of such goods sold from such other place at or about the same time and, where such goods are not sold at or about the same time, at the time nearest to the time of removal of said goods from the factory of job-worker;

iii. in a case not covered under clause (i) or (ii), the provisions of foregoing rules, wherever applicable, shall mutatis mutandis apply for determination of the value of the excisable goods : Provided that the cost of transportation, if any, from the premises, wherefrom the goods are sold, to the place of delivery shall not be included in the value of excisable goods.

Explanation. – For the purposes of this rule, job-worker means a person engaged in the manufacture or production of goods on behalf of a principal manufacturer, from any inputs or goods supplied by the said principal manufacturer or by any other person authorised by him.”

23. It is also not in dispute that the Little Star paid duty based on the values declared by Mondelez. These values are reflected in the price list discussed above. The only point of dispute are the three elements which the Ld. Adjudicating Authority sought to include in the assessable value i.e. the Dealer’s margin, RD Markup and Post Manufacturing expenses. As far as the dealer’s margin is concerned, the Ld. Adjudicating authroity felt that there is no dealer and the dealer’s premises are the assessee’s own premises. From the sample contract with the dealer produced by the Ld. Counsel for the appellant before us, we are convinced that there are indeed dealers. Therefore the dealer’s margin cannot be included in the assessable value. We further find that in a commodity which costs Rs. 2/- per piece, it is inconceivable that M/s Mondelez was selling these goods directly to individual retailers across the country. Therefore, there is no room for disallowing dealer’s margin as a deduction.

24. As far as the RD Mark up is concerned, the Ld. Commissioner considered this to be an R&D cost and Ld. Counsel for the appellant clarifies that this is a margin given to the re-distributors. There is no evidence on record to show that this actually pertains to R&D expenses. Therefore, inclusion of R&D mark up in the assessable value is not sustainable and it deserves to be set aside.

25. As far as the PME (post manufacturing expenses) is concerned, inclusion of these expenses depends upon the nature of the post manufacturing expenses. In case where these are expenses incurred upto the place of removal, the same have to be included in the assessable value. However, if these represent other expenses such as cheque discounting charges as has been asserted by the Ld. Counsel before us, they cannot be included in the assessable value, as has been held by the Tribunal in their own case (supra). This is a fact which can be verified by the adjudicating authority based on any evidence that may be provided by the appellants.

26. On the question of invoking the extended period in appeals No. E/1768/2012 and E/1781/2012, we find from the records that all necessary information was already made available to the department based on which a show cause notice was initially issued and thereafter a subsequent show cause notice was issued, invoking the extended period of limitation alleging suppression of facts which is certainly not sustainable. Once all facts were noted in the department and the department has come to some tentative conclusion regarding the classification and valuation under section 4A of the Central Excise Act and thereafter after a period of one year based on the same facts issued a different show cause notice, coming to a different set of conclusion, all that can be said, it was a question of interpretation which the department itself was not sure about it. Therefore, the demand of extended period of limitation cannot be sustained. Accordingly, the demand to that extent has to fail.

27. As far as the imposition of penalties are concerned, penalties under section 11AC can be imposed where there is fraud, collusion, wilful misstatement, suppression of facts or contravention of any provisions of the Act or the rules made there under with an intent to evade payment of duty. In the present case, we have already held with respect to the invocation of the extended period on limitation that these factors have not been established. Clearly, this is only a question of interpretation regarding the exemption notification and value. Therefore, the penalties imposed under Section 11AC need to be set aside and we do so.

28. As far as penalty under Rule 26 upon Mondelez is concerned, on a plain reading of this Rule (supra), we do not find any grounds to uphold the penalties imposed upon them (Mondelez), as we have already held that the elements of fraud, collusion, wilful misstatement, suppression of facts or violation of act of Rules with an intent to evade payment of duty, have not been established. In view of the above, the appeals are disposed of as under:

ORDER

(I) The benefit of Exemption Notification No. 3/2006 (Sl.No. 19) meant for wafer biscuits is not available to the appellant (Little Star) as their products are not wafer biscuits.

(II) The dealer’s margin and RD Mark up are not includable in the assessable value of the products manufactured by the assessee (Little Star).

(III) As far as the post manufacturing expenses are concerned, the matter is remanded to the original authority to enable the assessee (Little Star) to establish that these pertain to the cheque discount charges as asserted by them or any other expenses not covered by Section 4.

(IV) The demand for the extended period of limitation is unsustainable and is consequently set aside.

(V) The demand and interest in all appeals have to be recomputed as above and for this limited purpose of computation, the matters are remanded to the original authority.

(VI) As the matter is an interpretational one and no elements of fraud, collusion, wilful misstatement or suppression of facts or violation of Acts or Rules made there under, are established, the penalties imposed under Section 11 AC on Little Star and the penalties imposed under Rule 26 upon Mondelez are set aside.

29. Appeal Nos. E/1781/2012, E/20235/2014 and E/21173/2015 filed by Mondelez are allowed. Appeal Nos. E/1768/2012, E/20234/2014, E/21160/2015 filed by Little Star are partly allowed as above by way of remand for the limited purpose of verification of nature of post manufacturing expenses and re-determining the duty and interest excluding any demand for extended period of limitation.

(Pronounced in open court on 06.08.2019)

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