Jayanti Food Processing (P) Ltd VS. Commissioner Of Central Excise, Rajasthan

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Jayanti Food Processing (P) Ltd VS. Commissioner Of Central Excise, Rajasthan

CASE NO.: Appeal (civil) 2819 of 2002

PETITIONER: Jayanti Food Processing (P) Ltd

RESPONDENT: Commissioner of Central Excise, Rajasthan

DATE OF JUDGMENT: 22/08/2007

BENCH: Ashok Bhan & V.S. Sirpurkar

JUDGMENT: J U D G M E N T

WITH

CIVIL APPEAL NOS.2150-2151 OF 2004 Commissioner of Central Excise, Calicut Versus

ITEL Industries Pvt. Ltd.

WITH

CIVIL APPEAL NO.1144 OF 2004 Commissioner of Central Excise, Calicut Versus

BPL Telecom Private Limited

WITH

CIVIL APPEAL NO.1738 OF 2004 Nestle India Limited Versus Commissioner of Central Excise, Goa

WITH

CIVIL APPEAL NO.1385 OF 2005 Commissioner of Central Excise, Chandigarh Versus Himachal Exicom Communication Ltd.

WITH

CIVIL APPEAL NO.2877 OF 2005 Commissioner of Central Excise, Nagpur Versus Electrolux Kelvinator Ltd.

WITH

CIVIL APPEAL NO.3847 OF 2005 The Commissioner of Central Excise, Noida Versus Uniword Telecom Ltd.

WITH

CIVIL APPEAL NO.6168 OF 2005 Commissioner of Central Excise, Nagpur Versus Electrolux India Ltd.

WITH

CIVIL APPEAL NO.6425 OF 2005 Commissioner of Central Excise, Calicut Versus

ITEL Industries

WITH

CIVIL APPEAL NOS.6559-60 OF 2005 The Commissioner of Central Excise, Ghaziabad Versus Explicit Trading & Marketing (P) Ltd.

WITH

CA 498 OF 2006 Commissioner of Central Excise, New Delhi Versus Ramani Power Cables Pvt. Ltd.

WITH

CIVIL APPEAL NO.4754 OF 2006 Commissioner of Central Excise & Customs, Calicut Versus

BPL Telecom Ltd.

WITH

CIVIL APPEAL NO.5840 OF 2006 Commissioner of Central Excise, Nagpur Versus Electrolux Kelvinator Ltd.

V.S. SIRPUKAR, J 1. This judgment will dispose of in all 15 appeals. They can be classified in two groups. Two appeals are filed by the Assessees challenging the order of Customs, Excise & Gold (Control) Appellate Tribunal (hereinafter referred to as the Tribunal), they being CA 2819/2002 filed on behalf of Jayanti Food Processing (P) Ltd., for sale of Ice-creams and CA 1738/2004 filed on behalf of Nestle India Limited pertaining to KITKAT Chocolates. The remaining appeals are filed by the Commissioners of Central Excise from various places and they are CA 2150-51/2004 and CA6425/2005 against ITEL Industries,

CA 1144/2004 and CA 4754/2006 against BPL Telecom Ltd., CA 1385/2005 against Himachal Exicom Communication Ltd. These appeals by themselves formulate into one group relating to the sale of telephone instruments by the assesses. CA 2877/2005,

CA6168/2005 and CA5840/2006 against Electrolux Kelvinator and Electrolux India relate to the sale of Refrigerators. Further CA6559- 6560/2005 against Explicit Trading and Marketing Pvt.Ltd., pertain to the sale of bottled mineral water. Lastly CA498/2006 against Ramani Power Cables Pvt., Ltd. relate to the sale of Electric Filament Lamps.

2. All these appeals pertain to the interpretation of Section 4 and 4A of the Central Excise Act, 1944 (hereinafter referred to as the Act) and the provisions of Standards of Weights & Measures Act, 1976 (hereinafter referred to as the SWM Act) as also the Standards of Weights & Measures (Packaged Commodities) Rules, 1977 (hereinafter referred to as the SWM (PC) Rules). In the appeals filed by the Assessees, Jayanti Foods and Nestle India the Tribunal has accepted the contention of the Department that these Assessees should be assessed under Section 4A while the contention of the Assessees is that they should be assessed and taxed under Section 4 of the Act. In the appeals filed by the Department pertaining to sale of Telephone Instruments, the contention of the Department is that they should also be taxed and assessed under Section 4 and n...

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