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CASE NO.: Appeal (civil)  4549 of 2003

PETITIONER: SKB Dryfruits Marketing Co. Pvt. Ltd

RESPONDENT: Commissioner of Central Excise, New Delhi

DATE OF JUDGMENT: 19/02/2008

BENCH: ASHOK BHAN & J.M. PANCHAL

JUDGMENT: JUDGMENT

O R D E R

       The appellant carries out the activities of processing dry fruits, peanut and are al so  carrying out activities of clearance of wheat dalia, rice flips, roasted and spiced channa a nd  channa dal which are being cleared in different pouches bearing brand   name  ’Yum’Yum’ and ’SKB’ which are packed cartons.          Since the appellant had not disclosed the material facts of the manufacture of excis able  goods in any manner to the Department with an intent to evade central excise duty, a show  cause notice dated 24.4.1998 was issued to the appellant.  After the reply having been filed   by the appellant, the Additional Commissioner vide Order in Original No.81/98 dated 24th  December 1998 confirmed the demand of central excise duty; imposed penalty besides  confiscating the seized goods and ordered redemption of goods on payment of redemption  fine of Rs.35,000/- in lieu of confiscation.  The Addl. Commissioner also imposed a penalty  of Rs.15,000/- on Sh. Sudhir Kumar, Director of the appellant-company.   The  appellant,   being  aggrieved, filed an  

C.A.No.4549/02 .... (Contd.) - 2 - appeal before the  Commissioner (Appeals) which was rejected vide order dated 12th  February 2001.         The appellant thereafter filed an appeal before the Tribunal on the grounds, inter a lia,  that the activities carried on by the appellant did not amount to manufacture; that the  products remained nuts and are not known by any other name in the trade parlance and,  therefore, it cannot be held that they were subjected to any preparation which may bring  them into the mischief of duty of excise.  The Tribunal negatived the plea raised by the  appellant and confirmed the order in original but reduced the amount of penalty.         Being dissatisfied by the order of the Tribunal, the appellant has filed the present   appeal. This Court entertained the appeal and issued notice only insofar as peanuts, pista,  cashewnuts and almonds are concerned.  The appeal was not entertained as regards other  items.  This appeal was ordered to be tagged with other connected appeals.  Thus, the  appeal was listed along with C.A.No.2215 of 2002 and other appeals involving similar  question.  However, since the counsel for the appellant was not present on the date of  hearing, the present appeal was de-linked and the connected appeals were disposed of by a  judgment dated 07th February 2008 in the case of Commissioner of Customs & Central  Excise, Goa v. Phil Corporation Ltd. reported in 2008(2) SCALE 260 = JT 2008(2) SC  239.  By  the  said  judgment,  C.A.No.2215 of 2002 filed by the  

C.A.No.4549/02 .... (Contd.)

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- 3 - Revenue was allowed and the appeals filed by the assessees were dismissed.  In  C.A.No.2215 of 2002, the Tribunal had taken a contrary view than the one taken by the  Tribunal in the present case.  In that case it was held by the Tribunal that the similar  activities carried on by the assessee did not amount to manufacture.  Hence, the products  in question were not chargeable to duty.  This Court, by the aforementioned judgment, has  reversed the order of the Tribunal and has held that the activities carried on by the assess ee  amounted to ’manufacture’ and that the products in question were classifiable under  Chapter 20 of the Central Excise Tariff Act and accordingly set aside the order passed by  the Tribunal and allowed the appeal filed by the Revenue.           Since the products involved in the present case are similar to those in the case of  Phil  Corporation Ltd. (supra), following the said decision, we dismiss the present appeal filed  by the assessee as the order of the Tribunal herein is in conformity with the aforementioned   decision of this Court.           No costs.