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TMI Blog2015 (1) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... aw: "1. Whether the first respondent is justified in vacating the demand of duty and penalty on the ground of limitation and allowed the appeal inasmuch as a) the second respondent had not filed the necessary declaration under rule 173B ibid. b) the second respondent had suppressed the fact of manufacture of sugar syrup with intention to evade payment of duty. c) the invocation of the extended period under proviso to Section 11A of the Act ibid is valid and warranted. 2. Whether the order of the Tribunal is correct in finding that the levy of Central Excise Duty hit by limitation when the tribunal given finding that the sugar syrup is excisable one? 3. Whether the order of the Tribunal is correct in finding that the levy itself is bar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty and levied penalty. The relevant portion of the order of the Adjudicating Authority reads as follows: ORDER "1) The product Sugar Syrup manufactured and captively consumed is classified under Chapter Sub-Heading No.1702.30 of Central Excise Tariff Act, 1985, with duty liability at the rate of 10% adv. 2) I confirm and demand Central Excise Duty of Rs. 29,00,867/- (Rupees Twenty nine lakhs eight hundred sixty seven only) as shown in the Annexure to the Show Cause Notice under Section 11A(2) of Central Excise Act, 1944. 3) PEPSICO are liable for a penalty of Rs. 8,70,606/- (Rupees Eight lakhs seventy thousand six hundred and six only) under Section 11AC of the Central Excise Act, 1944. 4) I impose a penalty of Rs. 20,30,261/- (Rupees ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mango pulp-based product and that the marketability of the commodity had to be looked into. It was in the show-cause notice dated 15.5.2000 that the Department suddenly came up with a case against the assesee in relation to sugar syrup and that too for an old period (May 1995 to April 1997). We also note that there was fluctuation of views in the departmental circles over a long period. The period of dispute in this case is comprised in that period. In this connection, the reliance placed by the learned counsel on Duke & Sons Pvt. Ltd. Vs. Commissioner 2004 (178) ELT 190 (Tri.-Mumbai) is apposite. In that case, though sugar syrup was held to be excisable, the demand of duty thereon was set aside as time-barred having regard to the cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... another circular dated 03.07.1996 was issued, which also in favour of the Revenue. Again another circular dated 12.3.2004 was issued clarifying the issue on the ground of 'test of marketability'. 10. In view of the above circulars, the Tribunal came to hold that there was no marketing of the sugar syrup by the assessee. Hence, based on the various circulars issued from time to time by the Board based on the doubts raised from time to time, the Tribunal came to hold that the Department had knowledge as early as 1994 and therefore, for the period May, 1995 to May, 1997 there cannot be a case of suppression. Since the period in dispute is relatable to the period where there were number of clarifications on account of this issue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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