COMMISSIONER OF CENTRAL EXCISE AURANGABAD (NOW COMMISSIONER OF CENTRAL GST AND SERVICE TAX)versusM/S MILLENNIUM BEER INDUSTRIES LTD., BANGALORE NOW (M/S UNITED BREWERIES LTD. AURANGABAD)

2026:BHC-AUG:40233-DB
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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD
                   CENTRAL EXCISE APPEAL NO. 1 OF 2020

             Commissioner of Central Excise Aurangabad
             (Now Commissioner of Central GST and
             Service Tax, N-5, Town Center,
             CIDCO, Aurangabad – 431003.              ...Appellant
                                                       (Original Respondent)

                                    VERSUS

             M/s Millennium Beer Industries Ltd.
             "UB Tower", UBCT# 24,
             Vittal Mallya Road, Bangalore
             (Now amalgamated with
             M/s United Breweries Ltd)
             Situated at Plot No.L-10,
             MIDC Waluj Industrial Area,
             Aurangabad.                                ...Respondent
                                                     (Original Appellant)

                                     ******
                 Advocate for Appellant : Mr.Dwarkadas S. Ladda
       Advocate for Respondent/Sole : Mr. A.P. Malani and Mr. A.P. Bhandari
                                     ******
                            CORAM      : NITIN B. SURYAWANSHI AND
                                         ABASAHEB D. SHINDE, JJ.
                          RESERVED ON : 22.07.2026
                         PRONOUNCED ON : 03.09.2026

             JUDGMENT : ( PER : ABASAHEB D. SHINDE, J.)
             .     This appeal under Section 35G of the Central Excise Act,
             1944 (for short, ‘the Excise Act’) read with Section 83 of the
             Chapter V of the Finance Act, 1994 (for short, ‘the Finance Act’)
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filed by the Revenue is assailing the judgment and order dated
11.07.2019 bearing No. A/86241/2019 in Appeal No. ST/88407/ 2014
passed by the Customs, Excise and Service Tax Appellate Tribunal
at Mumbai (for short, ‘the Appellate Tribunal’), thereby allowing
the appeal filed by Respondent herein.

FACTUAL MATRIX OF THE CASE:-

2.   Briefly stated, the facts of the case are that, during the period
from 23.09.2009 to 15.11.2011, the Respondent/assessee, on the
basis of an agreement/contract dated 01.04.2005 with M/s. United
Breweries Ltd. (for short, “M/s. UBL”), manufactured and sold the
alcoholic beverages to the customers/indenters of M/s. UBL, as per
the instructions of M/s. UBL. The appellant claims that they
gathered intelligence and started investigation in the year 2010
pursuant to which it has issued show-cause notice cum demand
notice no. DGCEI/I&IS “D”/30-113/2012/11351 dated 19.12.2012 for
Rs. 21,92,03,724/- alongwith interest under Section 75 of Ch.V of
the Finance Act red with Sections 76,77 and 78 of the Finance Act.


3.   The proceedings pursuant to the said show-cause notice cum
demand notice were adjudicated by the appellant and vide Order-
In-Original   No.21/ST/COMMR.2014         dated    30.04.2014,              the
appellant confirmed the Service Tax demand for the aforesaid
amount with interest and the penalty as contemplated under
Sections 77 and 78 of the Finance Act. Being aggrieved, by the said
order the Respondent filed an appeal under Section 35B (1) of the
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Excise Act, before the Appellate Tribunal bearing Service Tax
Appeal No. ST/88407/2014, which came to be allowed by the
impugned order. Hence, this Appeal.

SUBMISSIONS:-

4.     Learned counsel for the appellant strenuously submits that
since the Service Tax was payable on services rendered by the
Respondent to M/s. UBL from 01.04.2010 to 15.11.2011, the said
liability cannot be extinguished because of merger deemed to have
been    applicable     from       the   appointed     date.    The       date       of
merger/amalgamation cannot be considered to be 01.04.2010. The
appellant therefore, was justified in issuing demand notice invoking
the extended period of limitation. He would submit that, the
Appellate Tribunal has erred in holding that the appointed date
under the scheme of amalgamation i.e., 01.04.2010 as approved by
the BIFR needs to be considered as the date for imposing the
service tax liability and not the effective date when the certificate of
incorporation was issued by the Registrar of Companies (ROC) i.e.,
16.11.2011. He therefore urged that, the Appellate Tribunal has
committed an error in allowing the appeal filed by the Respondent
on the ground that the demand raised by the appellant is barred by
limitation.

5.     According to the learned counsel for the appellant, this appeal
involves the following substantial questions of law:

     “1. Whether on the basis of facts and circumstance of the case, the Ld.
     CESTAT is correct in holding that the demand is barred by limitation
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     when the arrangement between the assessee (the present Respondent)
     and M/s United Breweries Ltd for manufacture of branded beer on
     behalf of M/s United Breweries Ltd has never been disclosed to the
     Department?

     2. Whether in the facts and circumstances of the case, the Tribunal is
     correct in holding that the appointed date i.e. 01/04/2010 in the
     Scheme of amalgamation be considered the effective date for service tax
     liability when the certificate of incorporation was issued by the Registrar
     of Companies on 16/11/2011 ?"

6.    Per contra, learned counsel for the Respondent raised a
preliminary objection about maintainability of the appeal inter alia
contending that similarly circumstanced assessee M/s. SAB Miller
Breweries Pvt.Ltd. (for short, M/s. SAB Pvt.Ltd.) to whom identical
demand/show-cause notice was issued also preferred an appeal
before the Appellate Tribunal bearing Appeal No. ST//85828/2014.
The Appellate Tribunal allowed both the appeals filed by the
Respondent as well as M/s. SAB Pvt. Ltd. on the same ground. The
appellant accepted the judgment in the case of M/s. SAB Pvt. Ltd.
whereas the same is challenged in the case of the Respondent. He
therefore submits that, the revenue cannot take different stand
when facts are almost identical. In support of his submission, he
has relied on the following judgments :
i) Birla Corporation Ltd. Vs. Commissioner of Central Excise
reported in (2005) 6 SCC 95,
ii) Union of India (UOI) and Ors. vs. Kaumudini Narayan
Dalal and Ors. reported in (2001) 10 SCC 231.


7.     On merits, learned counsel for the Respondent submits that
the Appellate Tribunal has recorded findings of fact that the
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transaction between the Respondent and M/s. UBL prior to
amalgamation was disclosed to the revenue and the amount of
Service Tax for consideration of Rs. 5/- per case in relations to
‘Intellectual Property Service’ had already been paid. The said
finding of fact is duly supported by the evidence on record and the
correctness of the same is not under challenge. The same conclusion
in the case of M/s. SAB Pvt. Ltd. has already been accepted by the
appellant.

8.    Learned counsel for the Respondent further submits that, the
date of amalgamation w.e.f. 01.04.2010 is not in dispute. The period
of demand notice was from 23.09.2009 to 15.11.2011. In that view of
the matter, the relevant date would be substituted from 23.09.2009
to 01.04.2010, as such, the notice of demand ought to have been
issued within a period of one year, whereas the same has been
issued on 19.12.2012, almost after a period of thirty months from
the date of subject transaction which is impermissible. He,
therefore, urged that the appeal deserves to be dismissed.

CONSIDERATION:-


9.    We have heard learned Counsel for the appellant, learned
Counsel appearing for the Respondent and perused the record.

10.   As far as preliminarily objection raised by learned counsel for
the Respondent is concerned, while comparing the facts of M/s.
SAB Pvt.Ltd. with those of the present Respondent, it is evident
that the date of issuance of the Show Cause Notice, the date of
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Order-in-Original, the date of amalgamation, the period of demand,
and the computation of the demand by the Original Authority are
substantially identical. Even the ground for allowing their appeals
by the Appellate Tribunal is also same. In that view of the matter,
it can be safely inferred that the appellant has applied different
yardstick by challenging the judgment of the Appellate Tribunal in
the case of Respondent and accepting the same in the case of M/s.
SAB Pvt. Ltd. In this regard, it would be profitable to rely on the
observations of the Apex Court in case of Birla Corporation Ltd.
(supra) which reads thus:

      “5.In the instant case the same question arises for consideration and the
      facts are almost identical. We cannot permit the Revenue to take a different
      stand in this case. The earlier appeal involving identical issue was not
      pressed and was therefore, dismissed. The respondent having taken a
      conscious decision to accept the principles laid down in Pepsico India
      Holdings Ltd. (supra) cannot be permitted to take the opposite stand in this
      case. If we were to permit them to do so, the law will be in a state of
      confusion and will place the authorities as well as the assessees in a
      quandary.”

11.    The Hon’ble Apex Court in the case of Kaumudini Narayan
Dalal and Ors, (supra) has observed thus :

      ‘2.If the Revenue did not accept the correctness of the judgment in the
      case of Pradip Ramanlal Sheth (1993)204 ITR866 (Guj), it should
      have preferred an appeal there against and instructed counsel as to
      what the fate of that appeal was or why no appeal was filed. It is not
      open to the Revenue to accept that Judgment in the case of the
      assessee in that case and challenge its correctness in the case of other
      assessees without just cause. For this reason, we decline to consider
      the correctness of the decision of the High Court in this matter and
      dismiss the civil appeal.”

12.    In the light of ratio laid down by the Hon’ble Apex Court in
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cases of Birla Corporation Ltd. (supra) and Kaumudini
Narayan Dalal and Ors, (supra), we are of the considered view
that the Principle of Consistency is sacrosanct in revenue matters
and the revenue cannot be permitted to take different stand when
the facts are almost identical, if they are permitted to do so the
same would be contrary to the principles of fairness and equity.

13.   So far as merit part is concerned, before adverting to the
same, it would be apt to consider the provisions of Section 35G of
the Excise Act which reads thus :

“Section 35G. Appeal to High Court. -
(1) An appeal shall lie to the High Court from every order passed in appeal by the
Appellate Tribunal on or after the 1st day of July, 2003 (not being an order
relating, among other things, to the determination of any question having a
relation to the rate of duty of excise or to the value of goods for purposes of
assessment), if the High Court is satisfied that the case involves a substantial
question of law.
(2) The [Principal Commissioner of Central Excise or Commissioner of Central
Excise] or the other party aggrieved by any order passed by the Appellate Tribunal
may file an appeal to the High Court and such appeal under this sub-section shall
be -
(a) filed within one hundred and eighty days from the date on which the order
appealed against is received by the [Principal Commissioner of Central Excise or
Commissioner of Central Excise] or the other party;
(b) accompanied by a fee of two hundred rupees where such appeal is filed by the
other party;
(c) in the form of a memorandum of appeal precisely stating therein the
substantial question of law involved.
 [(2A) The High Court may admit an appeal after the expiry of the period of one
hundred and eighty days referred to in clause (a) of sub-section (2), if it is satisfied
that there was sufficient cause for not filing the same within that period.]
(3) Where the High Court is satisfied that a substantial question of law is involved
in any case, it shall formulate that question.
(4) The appeal shall be heard only on the question so formulated, and the
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respondents shall, at the hearing of the appeal, be allowed to argue that the case
does not involve such question :
Provided that nothing in this sub-section shall be deemed to take away or a bridge
the power of the Court to hear, for reasons to be recorded, the appeal on any other
substantial question of law not formulated by it, if it is satisfied that the case
involves such question.
(5) The High Court shall decide the question of law so formulated and deliver such
judgment thereon containing the grounds on which such decision is founded and
may award such cost as it deems fit.
(6) The High Court may determine any issue which -
(a) has not been determined by the Appellate Tribunal; or
(b) has been wrongly determined by the Appellate Tribunal, by reason of a
decision on such question of law as is referred to in sub-section (1).
(7) When an appeal has been filed before the High Court, it shall be heard by a
bench of not less than two Judges of the High Court, and shall be decided in
accordance with the opinion of such Judges or of the majority, if any, of such
Judges.
(8) Where there is no such majority, the Judges shall state the point of law upon
which they differ and the case shall, then, be heard upon that point only by one or
more of the other Judges of the High Court and such point shall be decided
according to the opinion of the majority of the Judges who have heard the case
including those who first heard it.
(9) Save as otherwise provided in this Act, the provisions of the Code of Civil
Procedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as
may be, apply in the case of appeals under this section.

14.   In short, the provision of Section 35G of the Excise Act,
explicitly provides that an appeal against the order passed by the
Appellate Tribunal would lie to this court, provided, it involves
substantial question of law.

15.   The only question that arises for consideration in this appeal
is whether the appellant could have exhausted the extended period
of limitation. In that regard it would be profitable to rely upon the
judgment of the Hon’ble Apex Court in the case of Uniworth
Textiles Ltd. vs. Commissioner of Central Excise, Raipur
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reported in (2013) 9 SCC 753 wherein while considering the
provision of Section 28 of the Customs Act, 1962 which is analogous
to Section 11A of Excise Act, the Hon’ble Apex Court observed thus:

    “25. Moreover, this Court, through a catena of decisions, has held that
    the proviso to Section 28 of the Act finds application only when
    specific and explicit averments challenging the fides of the conduct of
    the Assessee are made in the show cause notice, a requirement that
    the show cause notice in the present case fails to meet. In Aban Loyd
    Chiles Offshore Limited and Ors. (supra), this Court made the
    following observations:

      21. This Court while interpreting Section 11-A of the Central
      Excise Act in Collector of Central Excise v. H.M.M. Ltd.
      (supra) has observed that in order to attract the proviso to
      Section 11-A(1) it must be shown that the excise duty
      escaped by reason of fraud, collusion or willful misstatement
      of suppression of fact with intent to evade the payment of
      duty. It has been observed:
         ...Therefore, in order to attract the proviso to Section 11-
         A(1) it must be alleged in the show-cause notice that the
         duty of excise had not been levied or paid by reason of
         fraud, collusion or willful misstatement or suppression of
         fact on the part of the Assessee or by reason of
         contravention of any of the provisions of the Act or of the
         Rules made thereunder with intent to evade payment of
         duties by such person or his agent. There is no such
         averment to be found in the show cause notice. There is
         no averment that the duty of excise had been
         intentionally evaded or that fraud or collusion had been
         practiced or that the Assessee was guilty of wilful
         misstatement or suppression of fact. In the absence of
         any such averments in the show-cause notice it is difficult
         to understand how the Revenue could sustain the notice
         under the proviso to Section 11-A(1) of the Act.
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      It was held that the show cause notice must put the Assessee to
      notice which of the various omissions or commissions stated in the
      proviso is committed to extend the period from six months to five
      years. That unless the Assessee is put to notice the Assessee would
      have no opportunity to meet the case of the Department. It was held:

      ...There is considerable force in this contention. If the department
      proposes to invoke the proviso to Section 11-A(1), the show-cause
      notice must put the Assessee to notice which of the various
      commissions or omissions stated in the proviso is committed to
      extend the period from six months to 5 years. Unless the Assessee is
      put to notice, the Assessee would have no opportunity to meet the
      case of the department. The defaults enumerated in the proviso to
      the said Sub-section are more than one and if the Excise Department
      places reliance on the proviso it must be specifically stated in the
      show-cause notice which is the allegation against the Assessee falling
      within the four corners of the said proviso....

                                                          (Emphasis supplied)
      26. Hence, on account of the fact that the burden of proof of proving
      mala fide conduct under the proviso to Section 28 of the Act lies with
      the Revenue; that in furtherance of the same, no specific averments
      find a mention in the show cause notice which is a mandatory
      requirement for commencement of action under the said proviso; and
      that nothing on record displays a wilful default on the part of the
      Appellant, we hold that the extended period of limitation under the
      said provision could not be invoked against the Appellant.”


16.    In light of ratio laid down by the Hon’ble Apex Court in the case
of Uniworth Textiles Ltd. (supra), and having regard to the fact that,
the appellant has not been able to prove that any fraud, collusion or
suppression of facts is attributed to the Respondent with intent to
evade the payment of excise duty, the appellant could not have
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invoked the extended period of limitation against the Respondent. In
this view of the matter, what emerges from the above discussion is that
the Demand-cum-Show Cause Notice issued by the appellant on
19.12.2012, i.e., after almost two years from the date of the subject
transaction, is barred by limitation.

CONCLUSION:-

17.     We, therefore, are of the view that, the Appellate Tribunal,
after appreciation of evidence, has arrived at a finding of fact that,
the demand raised by appellant is barred by limitation, which can
neither be termed as erroneous nor perverse. The instant appeal
does not involve a substantial question of law, much less a question
of law. Moreover by applying the principle of consistency, we find
that the present appeal deserves to be dismissed.


18.     In the result, the Appeal is dismissed.




 ( ABASAHEB D. SHINDE, J. )             (NITIN B. SURYAWANSHI , J. )




vsj..