1. The brief facts of the case are that the appellants are manufacturer of different types of instant food mixes viz. Gota Mix, Khaman Mix, Dalwada Mix, Dosa Mix, Gulab Jamun Instant Mix etc. The appellant availed Notification No. 03/2006-CE dated 01.03.2006 (Sr. No. 28) and paid the duty @ 8%. The department felt that the benefit of the said Notification was not available to the appellant, as Sr. No. 28 of the said Notification allowed the benefit to only those instant foods mixes which are mentioned against the said Serial Number. The appellant had utilized Cenvat credit on packing material whereas the goods manufactured by the appellant became fully exempt by virtue of Notification No. 03/07-CE dated 01.03.2007. Revenue felt that the appellant should reverse the Cenvat credit taken in respect of inputs contained in the final products lying in stock or in process as on 28.02.2007. Accordingly, a common show cause notice was issued, which was adjudicated resulting into confirmation of demand of Rs. 8,47,151/- and confirmation of Cenvat credit of Rs. 1,64,185/- along with interest and imposition of penalty of Rs. 10,11,336/- under Section 11AC of the Central Excise Act, 1944 and imposition of penalty of Rs. 1,00,000/- on Shri Vijaybhai Dodia, Chief Executive Officer of M/s. Ramdev Food Products Pvt. Ltd.
2. Aggrieved from the said, the appellant went in appeal. In the said proceedings, the Ld. Commissioner (Appeals) set aside the demand of Rs. 8,47,151/- on account of the benefit of Notification No. 03/2006-CE dated 01.03.2006. They also challenged the dropping of penalty on Shri Vijaybhai, CEO. The appellant has filed this appeal against the order of the Ld. Commissioner (Appeals) challenging upholding the demand of Rs. 1,64,185/- along with interest and penalty.
3. Ld. Advocate for the appellant submits that the issue pertaining to extension of benefit of Notification No. 03/2006-CE dated 01.03.2006 to the other instant food mixes, like, Gota Mix, Khaman Mix, Dalwada Mix, Dosa Mix, Gulab Jamun Instant Mix etc, which are not specifically mentioned in the Notification No. 03/2006-CE (Sr. No. 28) is no longer res-integra and is decided in favour of the assessee in the case of Commissioner of Central Excise, Ahmedabad vs. R.M. Foods-2010 (249) ELT 363 (Tri.-Ahmd.). He argued that the issue of reversal of credit after becoming eligible for the Notification No. 03/2007-CE dated 01.03.2007, the Rule 11(3) of the Cenvat Credit Rules, 2004 came into effect on 01.03.2007. He also mentioned that Rule 11(3) came into effect from 01.03.2007 by way of Notification No. 10/2007-CE (NT). He relied upon the following case laws in his support in the case of Commissioner of Central Excise - Chandigarh vs. Tyres Tops : 2010 (250) ELT 338 (HP) and Commissioner of Central Excise, Rajkot vs. Ashok Iron & Steel Fabricators : 2002 (140) ELT 277 (Tri.-LB).
4. On the first issue, the Ld. AR for the Revenue submitted that though the words "such as" were mentioned at Sr. Number 28 of the Notification No. 03/2006-CE dated 01.03.2006, the instant food mixes mentioned against the said serial number were specific and at the end of the entry, it was mentioned "and Kesari Mix" and not "Kesari Mix etc.". Therefore, the other instant food mixes were not covered by the Sr. No. 28 of the said notification. He also argued that in the subsequent Notification No. 03/2007-CE dated 01.03.2007 all kinds of food mixes including instant food mixes falling under 2106 90 were exempted and the legislative intent was clear from the speech of the Finance Minister in the Budget 2007-2008 from the following words:-
"I propose to fully exempt from excise duty all kinds of food mixes including instant mixes. I can no longer be accused of being partial to idli and dosa mixes."
He further reiterated the findings of the other Ld. Commissioner (Appeals).
5. Heard both sides and perused the records. We find that the first issue pertaining to eligibility of Gota Mix, Khaman Mix, Dalwada Mix, Dosa Mix, Gulab Jamun Instant Mix etc., under Notification No. 03/2006-CE is no longer res integra and has been settled by this Tribunal in the context of Notification No. 03/2006-CE dated 01.03.2006 in the case of R.M. Foods (supra), wherein, this Tribunal held as below:-
"5. Revenue's only contention is that since the products manufactured by the respondent are not specifically mentioned in the above description of the goods, they cannot be held to be covered by the notification. On the other hand, it is the assessee's contention that the notification grants exemption to various instant food mixes and specific mention of certain products is only exemplary, as is clear from the use of expression 'such as'.
6. It is seen that Revenue in their memo of appeal has, otherwise, not disputed the fact that various products manufactured by the assessee are instant food mixes and are classifiable under Chapter 21. In fact, in their grounds, they had admitted that in general words 'such as' are illustrative in nature and similar items come within the ambit for exemption etc. as clarified by different Courts/Tribunals, but in the present case, the language used in notification is very specific. The use of word 'and' used before last item Kesari Mix indicates that the list of the goods ends there and no further item can be added. They have also referred to the speech of the Finance Minister for the year 2007-2008, which is to the effect that "I propose to fully exempt from Excise duty all kinds of food mixes including instant mixes. I can no longer be accused of being partial to idli, dosa mixes." From the above, Revenue contended that interpretation of 'such as' is exhaustive and will not cover the items which are not mentioned therein.
7. We find no merits in the above contention of the department. Admittedly, the notification exempts instant food mixes. The products manufactured by the respondent are nothing but instant food mixes. After exempting instant food mixes, the notification goes to further elaborate the same by giving exemptions to such mixes when it used expression 'such as'. As rightly observed by the Commissioner (Appeals), the word 'such' are defined as under:
"The word 'such' has been defined as 'of that kind, of the same or like kind'. Its meaning is given in the concise Oxford Dictionary is of the same kind or degree; of the kind of degree already described or implied in context. It is defined in the New Webster Dictionary as 'of the kind, character, degree or extent of that or those indicated or implied. Thus, the expression 'such as' used in Column (3) at Sr. No. 28 merely illustrates instant foods mixes and the enumeration, in my opinion, of the product which follows the expression 'such as' is therefore not exhaustive but is used to give examples."
8. The Hon'ble Supreme Court in the case of M/s. Good Year India Ltd. v. Collr. of Customs, Bombay : 1997 (95) E.L.T. 450 (S.C.), has held that the words 'such as' appearing in sub-heading 2 of Heading 84.61 of the Customs Tariff are illustrative of various metals and not exhaustive. Similarly, in case of M/s. Jalal Plastic Industries v. UOI : 1981 (8) E.L.T. 653 (Guj.), the expression 'such as' was held to be illustrative and not exhaustive. To the same effect is Tribunal's decision in case of M/s. T.T.K. Pharma v. Collr. of C.E. : 1993 (63) E.L.T. 446 (Tribunal).
9. In view of the above, we find no reason to interfere in the impugned order of the Commissioner (Appeals). The appeal filed by the Revenue is, accordingly, rejected."
6. By following the above judgment of the Division Bench of this Tribunal, we hold that the appellants are eligible to the benefit of Notification 03/2006-CE dated 01.03.2006. Accordingly, the order of the Commissioner (Appeals) on this issue is upheld and the Revenue's appeal on this issue is dismissed.
7. On the second issue, we find that Cenvat credit lying in balance in respect of packing materials was Rs. 1,64,185/- as on 28.02.2007. We find that final products manufactured by the appellants were exempted vide Notification No. 03/2007-CE dated 01.03.2007. The sub-rule (3) inserted in Rule 11 of CCR, 2004 by virtue of Notification No. 10/2007-CE (N.T.) dated 01.03.2007, reads as follows:-
"In Rule 11 of the said rules, after sub-rule (2), the following sub-rules shall be inserted, namely:-
(3) A manufacture or producer of a final product shall be required to pay an amount equivalent to the Cenvat credit, if any, taken by him in respect of inputs received for use in the manufacture of the said final product and is lying in stock or in process or is contained in the final product lying in stock, if-
(i) he opts for exemption from whole of the duty of excise leviable on the said final product manufactured or produced by him under a notification issued under section 5A of the Act; or
(ii) the said final product has been exempted absolutely under section 5A of the Act, and after deducting the said amount from the balance of Cenvat credit, if any, lying in his credit, the balance, if any, still remaining shall lapse and shall not be allowed to be utilized for payment of duty on any other final product whether cleared for home consumption or for export, or for payment of service tax on any output service whether provide
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d in India or exported" On a plain reading of the said sub-rule, we agree with the findings of the Ld. Commissioner that the appellant are required to pay reverse an amount of Rs. 1,64,185/- equivalent to Cenvat credit taken on packing materials, used in packing of semi-finished goods and material used in packing of finished products on, availing the exemption Notification No. 03/2007-CE dated 01.03.2007 when the amendment in Rule 11(3) came into effect from 01.03.2007. On the aspect of penalty, since the show cause notice was issued for the normal period of limitation i.e. on 03.04.2007 and the issue relates to interpretation of law besides the appellant reversed the credit on 16.03.2007, that is, before issuance of show cause notice, therefore, imposition of penalty on the appellant, in our opinion on this issue, is unwarranted and accordingly set-aside. 8. In the result:- (i) Revenue's appeal is dismissed. (ii) The Appellant's appeal is partly allowed to the extent of setting aside the penalty.