TMI Blog2012 (7) TMI 673X X X X Extracts X X X X X X X X Extracts X X X X ..... marketability of the final product. The decision of the Apex Court in Gujarat Narmada case is on the point that the issue of marketability of the materials need not be decided on the basis of the actual sale of product but it must be capable of being sold in the market or known in the market as the goods. - matter remanded to original authority. - Excise Appeal No. 1906-1907 of 2011 - - - Dated:- 20-1-2012 - Ms. Archana Wadhwa, Mr. Rakesh Kumar, JJ. Shri A.R. M. Rao and Shri R.K. Hasija, Advocate for the Appellants Shri Sumit Kumar, SDR for the Respondent Per Archana Wadhwa (for the Bench): After dispensing with the condition of pre-deposit of duty and penalty, we proceed to decide the appeal itself inasmuch as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugar syrup manufactured by the appellants fails the test of marketability, the same cannot be held to be excisable. For the above proposition, he has also relied upon the Tribunal s decision in the case of CCE Mumbai IV vs. Raptakos Brett and Co. Ltd. as reported in [2006 (194) ELT 101 (Tri-Mum)]. They have contended that the onus to show that sugar syrup, manufactured by the appellants, as an intermediate product, to be used captively in the manufacture of the above biscuits, is upon the Revenue, who has failed to discharge the same. 4. On the other hand, the Revenue s contention is that invert sugar syrup is admittedly marketable and in support they have referred to various products being available in the market as invert sugar syrup. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... howing sale of sugar syrup. As such, he submits that the marketability of the products stands established by the Revenue and as such, the impugned orders be upheld. 6. After carefully considering the submissions made by both the sides, we note that invert sugar syrup is equimolar mixture of glucose and fructose in aqueous form. The biotechnological process employed for its manufacture employs immobilized enzymes for sucrose hydrolysis. The tariff entry under which the Revenue has classified the product reads as under:- 1702.90: Other, including invert sugar and other sugar and sugar syrup blends containing in the dry state 50% by weight of fructose. We find that the lower authorities had observed that some of the invert sugar syrup ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and cannot be marketed at all. By drawing our attention to the certificate given by Shriram Institute for Industrial Research, it stands contended before us that fructose contained in the sugar syrup being manufactured by the appellant is to the extent of 31%. As such they do not satisfy the criteria of 50% fructose weight in the sugar syrup, as specified in tariff heading 1702.90. 8. We note there is no dispute about the fact that it is the marketability of the product which is required to be examined and not the actual sale of the product. However, it is also equally true that the product being manufactured by a particular assessee is required to be examined vis -a- vis its marketability, depending upon the various factors like the st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t must be capable of being sold in the market or known in the market as the goods. In other words, though actual sale need not be established, the capability of the product being sold in the market or known in the market as goods must be established. It nowhere discloses any analysis of the materials on record to arrive at any finding regarding capability of the product being sold in the market or the same as being known to the market as the goods. Before relying upon any decision, it is necessary for the Adjudicating Authority to analyse the materials in relation to the facts of the case and to ascertain whether the reported decision of the higher authority is applicable to such the facts of the case in hand. 12. Plain reading of the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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