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2024 (4) TMI 4 - AT - Central ExciseLevy of Excise Duty - marketability of the sugar syrup - captive consumption - sugar syrup emerged as an intermediate product consumed captively in the manufacture of exempted final product viz. biscuits - period from May 2007 to April 2013 - SCN dated 26.05.2012 issued for the period May 2007 to September 2011 - Extended period of limitation - HELD THAT:- Before fastening the duty liability on the sugar syrup manufactured by the appellant, it is relevant to establish the marketability as held by the Tribunal in M/S AMBAJI FOODS (INDIA) PVT LTD VERSUS CCE, KANPUR [2010 (8) TMI 714 - CESTAT, NEW DELHI]. From the records, we find that the adjudicating authority has not analysed the aspect of marketability of the product analysing the shelf life of the product and other factors as clarified in Board’s Circular No.226/60/96-CX dated 03.07.1996 referred by the appellant. The appellant through their miscellaneous applications sought to add grounds about the liability for the period after 12/09/2011 submitting that the amending Notification No.39/2011-CE dated 12.09.2011 allowed exemption to sugar syrup consumed captively in the manufacture of biscuits in the factory. Admittedly, this plea was not taken before the authorities below. However, since it would go to affect the liability for the period after 12.09.2011, following the principles of law settled by the Hon’ble Supreme Court in the cases of JUTE CORPORATION OF INDIA LIMITED VERSUS COMMISSIONER OF INCOME-TAX AND ANOTHER [1990 (9) TMI 6 - SUPREME COURT] and DEVANGERE COTTON MILLS LTD. VERSUS COMMISSIONER OF C. EX., BELGAUM [2006 (4) TMI 134 - SUPREME COURT], the said grounds are allowed to be taken. Matter remanded to the adjudicating authority to examine the issue of marketability of the sugar syrup in the light of the Board’s Circular No.226/60/96-CX dated 03.07.1996 and also the applicability of amending Notification No.39/2011-CE dt. 12.09.2011 - all the appeals are allowed by of remand to the adjudicating authority.
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