JUDGMENT: Dalveer Bhandari, J.

1. We propose to dispose of the aforesaid appeals by this judgment because common questions of law are involved in these appeals. In order to avoid repetition, the facts of Civil Appeal No.2215 of 2002 are recapitulated in order to comprehend the controversy involved in these cases.

2. M/s Phil Corporation Ltd., the respondent assessee manufactures processed cashew nuts, peanuts, almonds etc. by dry roasting, oil roasting, salting, seasoning and packs them in different containers and clears these items under its brand name. Admittedly, the respondent assessee did not register with the Central Excise Authorities and cleared these goods without payment of excise duty.

3. After due investigation, a show cause notice was issued by the Commissioner of Customs and Central Excise, Goa on 6.8.1999 to the respondent assessee demanding duty under Chapter 20(2001.10) on the goods cleared without payment of central excise duty and proposed penalty action. The respondent assessee in its reply dated 4.10.1999 denied the allegations incorporated in the show cause notice and submitted that its products were correctly classifiable under Chapter Heading 0801.00 of the Central Excise Tariff Act, 1985 and chargeable to Nil rate of duty and hence there was no requirement to register with the Central Excise Authorities.

4. After hearing the respondent assessee, the Commissioner of Customs & Central Excise vide his Order-in-Original dated 31.10.2000 held that the goods are to be classified under Chapter 2001.10 and chargeable to duty and confirmed the demand and imposed penalty and redemption fine in lieu of confiscation of the seized goods and machinery.

5. Against the said order of the Commissioner of Customs & Central Excise, Goa, the respondent assessee filed an appeal before the Customs, Excise & Gold (Control) Appellate Tribunal, West Regional Bench at Mumbai. The Tribunal vide its impugned order dated 24.10.2001 allowed the appeal of the respondent assessee and held that the goods cleared by the respondent assessee are not assessable to duty.

6. Aggrieved by the order of the Tribunal, the appellant Commissioner of Customs & Central Excise, Goa has preferred this appeal before this Court.

7. In order to properly comprehend the controversy involved in these cases, we deem it proper to reproduce the legislative intention by reproducing the extracts of Chapters 8 and 20 of the Central Excise Tariff Act, 1985.

CHAPTER 8

EDIBLE FRUIT AND NUTS; PEEL OF CITRUS FRUIT OR MELONS

Note:

This Chapter does not cover inedible fruits or nuts.

Heading No. Sub- Heading No. Description of Goods Rate of Duty

1 2 3 4

08.01 0801.00 Edible fruit and nuts; Nil

peel of citrus fruit or melons

CHAPTER 20

PREPARATIONS OF VEGETABLES, FRUIT, NUTS OR OTHER PARTS OF PLANTS

Notes:

1. This Chapter covers only products which are prepared or preserved by processes other than merely chilled or frozen, or put in provisional preservative solutions, or dried, dehydrated or evaporated.

2. This Chapter does not cover fruit jellies, fruit pastes, sugar-coated almonds or the like in the form of sugar confectionery (Chapter 17) or chocolate confectionery (Chapter 18).

3. In relation to products of this Chapter, labeling or relabelling of containers and repacking from bulk packs to retail packs or the adoption of any other treatment to render the product marketable to the consumer, shall amount to "manufacture".

4. In this Chapter, "brand name" means a brand name, whether registered or not, that is to say, a name or a mark, such as a symbol, monogram, label, signature or invented words or any writing which is used in relation to a product, for the purpose of indicating, or so as to indicate, a connection in the course of trade between the product and some person using such name or mark with or without any indication of the identity of that person.

Heading No. Sub- Heading No. Description of Goods Rate of Duty

1 2 3 4

2