2005 (11) TMI 140 - AT - Central Excise

Liability to pay duty on sugar solution manufactured - excisability of sugar syrup - HELD THAT - On perusal of the records and from the findings of the original authority we find that the appellants have been using Citric Acid in the sugar solution. The Chemical Examiner s Report confirms this fact. The appellants had also filed the process of manufacture to the department wherein they have clearly shown the use of Citric Acid and other chemicals. In view of the Tribunal ruling rendered in the case of Sri Sarvaraya Sugar Ltd. 2001 (5) TMI 108 - CEGAT CHENNAI holding the Raw Sugar Syrup containing Citric acid to have shelf life and being dutiable therefore the impugned order is not sustainable. The Commissioner (Appeals) has proceeded on the basis of oral submission made by the assessee during hearing that they have stopped using Citric Acid from January 1995. However this fact was not agitated by the assessee with evidence. The relevant evidence on record showed that they had used Citric Acid in terms of Chemical Examiner s Report. Applying the ratio of the Tribunal the impugned order is not correct and proper and the same is set aside by allowing the Revenue appeal.

Summary

Issues: Revenue appeal regarding liability to pay duty on sugar solution manufactured by appellants.

Issue 1: Liability to pay duty on sugar solution
The Commissioner (Appeals) considered the issue of liability to pay duty on sugar solution manufactured by the appellants. The appellants argued that the sugar syrup emerging in the manufacture of aerated waters is not marketable, and the Department failed to prove otherwise. They also raised concerns about not receiving the chemical examiner's report for verification. The appellants cited legal precedents to support their contentions. The Commissioner (Appeals) did not consider the submissions regarding the cessation of citric acid use by the appellants. The Hon'ble Tribunal's decision in a similar case was referenced, emphasizing that sugar solution with less than 65% sugar content is not marketable and not subject to duty. Based on this precedent, it was held that the sugar solution manufactured by the appellants was not marketable, and the duty imposition was unjustified.

Issue 2: Citric acid use and shelf life
The Revenue challenged the findings, asserting that the appellants continued to use citric acid, contrary to their claim. The Revenue highlighted the presence of citric acid as a preservative in the sugar solution, giving it a shelf life. Reference was made to a Tribunal ruling classifying raw sugar syrup with citric acid under a specific sub-heading. The Revenue argued that the Commissioner (Appeals) erred in relying on a different case where citric acid was not used. Board circulars were cited to support the argument. Despite the absence of the respondents, the matter was heard on merits. The Tribunal found evidence of citric acid use in the sugar solution, supported by the Chemical Examiner's Report and the manufacturing process submitted by the appellants. Relying on the precedent of another case involving citric acid and shelf life, the Tribunal concluded that the impugned order was unsustainable. The Commissioner (Appeals) wrongly assumed the cessation of citric acid use based on oral submissions without concrete evidence, leading to the decision being set aside in favor of the Revenue appeal.