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TMI Blog1987 (11) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants replied contending that starch hydrolysate was not "goods" since the same was not marketable and, therefore, no excise duty would be payable on the same. They further contended that the proposed adjudication by the Collector following the above said notice would be without jurisdiction in view of the words in Section 11A of the Central Excises and Salt Act. They contended that starch hydrolysate is not glucose and that even if the same was liable for duty it would not be under Item IE. According to them this starch hydrolysate was an intermediate product in the manufacture of Sorbitol and no duty could be demanded on the same. 2. Adjudication proceedings followed in which affidavits were filed on behalf of the appellants, witnesses for the Department were cross-examined and the Collector also cross-examined the witnesses for the appellants. Thereafter under his order dated 6-12-1985 the Collector of Central Excise, Baroda rejected the contentions of the appellants. He held that starch hydrolysate was glucose and fell under Item IE CET and that the appellants had suppressed the fact of manufacture thereof for consumption in the further manufacture of Sorbitol. Accordingl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been that starch hydrolysate has never been marketed since it cannot be marketed in view of its highly unstable character resulting in fermentation even if kept for a day or two. 5. Shri Nanavati points out that in spite of such a specific plea having been taken no evidence has been produced by the Department that the said starch hydrolysate was ever marketed. As pointed out by him the witness for the Department (Shri R.C. Shukia, Superintendent) had been specifically cross-examined on this aspect. Shri Shukla had admitted that he did not make any market enquiry as to whether starch hydrolysate was ever marketed by anybody and had not also enquired whether it was marketable. Shri Khandor had stated in his affidavit (in support of the case of the appellants) in paragraph 14 that starch which is completely hydrolysed would start fermenting and decomposing and at higher concentration it would start crystalizing out within two or three days. Thus while there is positive evidence on the side of the appellants that starch hydrolysate would not be marketable (as it is highly unstable) and is not marketed by anybody, the admission of the Superintendent establishes that no enquiry whateve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olysate. For this he relies on the affidavits of Shri Parekh and Shri Khandor and a comparative chart prepared and filed before us (based on these affidavits) regarding the properties of these products. We have attached a copy of that comparative chart as an annexure to this order. That chart establishes that the glucose syrup (referred to in para 27 of the Collector's order) is materially different from the starch hydrolysate in issue before us. Hence, we are of opinion that reliance on the part of the Collector on the extracts in para 27 of his order was not correct, it was not proper to conclude (on the basis of the above extracts) that the starch hydrolysate of the appellants is a stable product and could, therefore, be marketed. 9. It is nobody's case that the subject goods are dextrose, mono-hydrate or anhydrous dextrose. The question, therefore, would be whether it is "glucose in whatever form including liquid glucose". According to the affidavits of Dr. Parekh, Prof. of Biochemistry, M.S. University of Baroda and Shri Khandor, a Food Technologist, as also evidenced by the technical literature on record, dextrose (synonymous with glucose) exists in three forms; alpha monohy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se with liquid glucose. Secondly, the subject produce does not contain dextrins whereas, according to U.S. Pharmacopeia and the "Condensed Chemical Dictionary" by Gessner G. Hawley, liquid glucose or glucose syrup contains dextrins. (In para 22 of his order, the Collector has also recorded that the goods are the product of complete hydrolysation (sic) and contains no dextrin). In the circumstances, it cannot be said that the appellants' product is the same thing as liquid glucose or glucose syrup. The Collector describes the goods as being prima facie a concentrated solution of glucose containing 71.2% of glucose, as reported by the Chief Chemist. The Collector is not correct in his observations. He seems to have misread the Chief Chemist's report. What the report says is that the sample consisted of 71.1% of reducing sugars expressed as dextrose by weight, and not that the sample consisted of 71.1% of dextrose by weight. Be that as it may, the Collector concludes that the product being a solution of glucose in a substantial strength is covered by the Tariff Entry "Glucose in whatever form including liquid glucose". This is to say, glucose in the form of solution. But, as we have n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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