TMI Blog2018 (1) TMI 1535X X X X Extracts X X X X X X X X Extracts X X X X ..... Our view is supported by the decision of Hon ble Supreme Court of India in the case of Bata India Ltd. vs CCE, BATA INDIA LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, NEW DELHI [ 2010 (4) TMI 58 - SUPREME COURT] and also of this Hon ble Tribunal in the case of M/S RISHI BAKERS PVT. LTD., SHRI PRAKASH CHAND TALREJA, DIRECTOR, M/S RAMAKRISHNA BAKERS PVT. LTD., SHRI RAJIV TALREJA, DIRECTOR, M/S SWATI BISCUIT MANUFACTURING CO., SHRI OM PRAKASH SHYAMDASANI, PARTNER VERSUS CCE ST, KANPUR [ 2015 (4) TMI 893 - CESTAT NEW DELHI] . Hence, the said product is not liable for Central Excise duty. Appeal allowed - decided in favor of appellant. - Excise Appeal No. 2601 of 2011 - Final Order No. 70699/2019 - Dated:- 25-1-2018 - Mr. Anil Choudhary, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical) Sh. Amit Aswathi, Advocate for the appellant Sh. Rajeev Ranjan, Authorised Representative for the Respondent ORDER Per: Anil Choudhary: The appellant has filed the present appeal against the order-in-original No. 16/Commissioner /2011 dated 29/07/2011 passed by the learned Commissioner, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enerated, is not marketable because being integral and inter-winded in a continuous process, the yarn threads are still open with oil contact and are not even open at the stage of being coned or paper coned or paper tubed and still the said product are bound in loose form in heavy iron bobbins, which still was to undergo subsequent operation and the product is in semi-finished form. The said product as alleged by the department, fails the test of marketability because the said intermediate product which is claimed liable to duty, cannot be marketed in any manner, in the condition in which it emerges. Only on presumption it cannot be alleged by the department that the said intermediate product could be marketed by the appellants. The appellant argues that, in the case of Bata India Ltd. vs. CCE 2010 (252) ELT 492 SC the Hon ble SC had held as follows: The test of marketability is that the product which is made liable to duty, must be marketable in the condition in which it emerges. He pleaded that in this case no evidence has been produced to prove that the sugar syrup as made by the appellants is marketable in the condition in which it emerges and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Revenue to prove that the product was marketable or was capable of being marketed. Manufacturing activity, by itself, does not prove the marketability. The product produced must be a distinct commodity known in the common parlance to the commercial community for the purpose of buying and selling. Since there is no evidence of either buying or selling in the present case, it cannot be held that the product in question was marketable or was capable of being marketed. Mere transfer of BMS by the appellant from its factory at Bangalore to its own unit at Patalganga for manufacture of final product was either marketed or was marketable . Further, reliance is placed on the case of Hon ble Supreme Court in the case of CCE vs. Amba Lal Sarabhai 1989 (43) ELT 214 (SC) further laid down the test of marketability and held that mere captive consumption is no evidence of marketability. The Hon ble Apex Court had held as follows: The duty of excise is on the manufacture of goods and for an article to be goods , there must be known in the market as such or they must be capable of being sold in the market as goods. Actual sale is not necessary. User in the capti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or which there is no basis. Chemically, invert sugar is obtained by Hydrolysis of cane sugar (sucrose, a disaccharide with specific rotation of + 66.5 ) and the same is a mixture of glucose (with specific rotation of +52.7 ) and fructose (with specific rotation of - 92 ), with net specific rotation of - 19.7 . The process of hydrolysis of cane sugar (which is dextrorotatory i.e. with rotation of + 66.5 ) is also called inversion, as the mixture of glucose and fructose formed by this process is levorotatory with sp. Rotation of - 19.7 and for this reason the mixture of glucose and fructose formed by hydrolysis of cane sugar is called invert sugar. The invert sugar has longer shelf life. Whether a sugar syrup is ordinary cane sugar syrup or is invert sugar syrup has to be ascertained by chemical test which has not been done. It is, therefore, totally wrong to presume a given sugar syrup as invert sugar syrup without test. The judgments of the Apex Court in the cases of Gujarat Narmada Valley Fert. Co. Ltd. v. CCE Cus. (supra), Nicholaas Piramal India Ltd. v. CCE, Mumbai (supra) and Medley Pharmaceuticals Ltd. v. CCE Cus, Daman (supra) cited by the learned DR are not applicable t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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