Home Case Index All Cases Central Excise Central Excise + AT Central Excise - 2019 (7) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (7) TMI 1790 - AT - Central ExciseNon-payment of service tax - by-product/captive consumption - cream paste - marketable goods or not - HELD THAT:- It is apparent from appellant’s contention that each biscuit manufacturer while manufacturing a cream biscuit has to prepare a cream to be sandwitched between two shells of the biscuit. This cream is prepared from few ingredient, as already mentioned above, and can be prepared by simply mixing those ingredients. No doubt since a different product then those ingredients is coming into existence, the process of mixing herein amounts to manufacture. But it is also simultaneous truth with this cream is specific to each manufacturer who customises it to maintain a particular taste of his brand of biscuit. Hence the cream as such has no marketability as no other manufacturer in the given circumstances would like to purchase the cream of other manufacturer. That cream/flavoured cream, intermediately, manufactured and captively used for manufacture of biscuits have now been exempted from 12.9.2011, in view of insertion of entry No. 19 in Notification No. 10/96-CE dated 23.7.96 vide Notification No. 39/2011-CE dated 12.9.2011. The cream which is produced captively is having unique flavour, colour and taste and the cream biscuits manufactured by different manufacturers have different flavours and taste. The Department has not been able to bring any evidence of marketability of creams so manufactured by the appellant. In the present case also the appellant is the job worker of M/s Parle Biscuits. The reliance placed on some cream sold in bakeries without reference to their ingredients like colour, flavour and taste cannot be relied on to fasten duty liability on the appellant. Hon’ble Supreme Court in UNION OF INDIA VERSUS SONIC ELECTROCHEM (P) LTD. [2002 (9) TMI 104 - SUPREME COURT], has laid down the test that the product which is specially manufactured and captively consumed in the factory should be shown to be available in the market so as to fasten any duty on the same. By following the ratio of the law laid down by the Apex Court, it is held that the cream captively produced and consumed in the factory is not marketable as there is no evidence to that effect. Appeal allowed - decided in favor of appellant.
|