COOL DESSERTS AND SHRI NEERAJ Vs. CCE

JUDGEMENT

(1.) In these three appeals arising out of a common Order -in -Appeal No. 213 -214/2003 dated 28.10.2003 - two appeal filed by M/s. Cool Desserts and Shri Neeraj Jain, Partner, and one appeal filed by Revenue one issue involved is whether the activities undertaken by them amounts to manufacture and whether the price is to be regarded as cum -duty price.

(2.) We heard Shri Abhishek Jain, learned Advocate for M/s., Cool Desserts, and another, and Shri S.C. Pushkarna, learned DR for Revenue. M/s. Cool Desserts have an Ice Cream Parlour where they serve ice -creams to their customs. They purchase ice -cream in bulk from M/s. Maharasthra Dairy Products Manufacturing Co. (P) Ltd. The demand of Central Excise duty has been confirmed against them and penalties shave been imposed on them on the ground that they were preparing the various ice -cream preparations such as Sundaes, Shakes, Blast and cakes out of the ice -cream purchased by them after adding ingredients such as nuts, wafers, sharbats, whipped cream, toppings, sugar syrup, etc. and that such admixture brings into existence a distinct commodity. Reliance has also been placed by the Commissioner (Appeals) on the judgement of the Supreme Court in the case of UOI Vs. Delhi Cloth and General Mills Co. - 1977 (1) ELT J 199 and Empire Industrial Ltd. Vs. UOI - 1985 (20) ELT 179 (SC).

(3.) The learned Advocate has contended that the activities undertaken by them does not amount to manufacture as the products sold by them are not separate and distinct from the ice cream from which they are made. He relied upon the decision in the case of Deputy Commissioner Sales Tax (Law) Vs. PIO Food Packers, 1980 (6) ELT 343 (SC) wherein the Supreme Court pineapple slices from the original pineapple yet the commodity continues to possess is original identity, notwithstanding the removal of inedible portions, the slicing and thereafter canning it or adding sugar to preserve it, it cannot be said to be "manufacture". Reliance has also been placed on the decision in the case of CCE, Kanpur Vs. Supersoft Productions (P) Ltd. 1997 (107) ELT 378 (T) wherein it has been held by the Tribunal that the activity of adding flavours if softy shake mix and by repacking in a small containers in 200 ml. Cannot be considered to be an activity of manufacture.