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TMI Blog2015 (6) TMI 262X X X X Extracts X X X X X X X X Extracts X X X X ..... being stored by them in tanks and thereafter, liquefied. This carbon dioxide was being used by the appellant for carbonation of the beer. The beer being an product, containing alcohol does not attract any central excise duty. There is also no dispute that sometimes when the Appellant's own production of carbon dioxide was not sufficient, they were purchasing the carbon dioxide from other commercial manufacturers of the carbon dioxide. The respondent were not paying any central excise duty on the carbon dioxide generated in the course of the fermentation process being cleared for captive use. The department was of the view that carbon dioxide which is generated in the appellant's factory in the course of fermentation and which is cap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led this appeal and in respect of the Revenue's appeal, the respondent have filed a cross-objection. 1.4 This appeal along with cross-objection was heard by the Tribunal on 9/5/2013. However, on that day, none representing the respondent had appeared. The Tribunal, however, vide final order no. 53685/2013 dated 9/5/2013 allowed the department's appeal following the Tribunal's judgment in the case of Artos Breweries Limited Vs. CCE-GUNTUR reported in 1992 (93) ELT 787 (Tribunal) . 1.5 Against the above order of the Tribunal, the respondent filed an appeal before Hon'ble Punjab & Haryana High court. Hon'ble High Court vide order dated 14/10/2014 set aside the Tribunal's order dated 9/5/2013 and restored the appeal to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n dioxide generated in the assessee's factory during fermentation process is the same and hence, the carbon dioxide generated in the assessee's factory would be marketable and hence, chargeable to duty and that the ratio of this judgment of the Tribunal is squarely applicable to the facts of this case as in this case, the respondent, in addition to using the carbon dioxide generated in the fermentation process in their own factory, were buying carbon dioxide from outside and it is clear that the carbon dioxide generated in their own factory during fermentation was of the same character as the carbon dioxide being purchased from outside and hence, the carbon dioxide generated in the factory and used captively has to be treated as mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tence in the course of fermentation process in the breweries has impurities of methane and some alcohol and these impurities have to be removed by scrubbing process for which a separate plant has to be installed; that the respondent had not installed any such plant and hence, the carbon dioxide generated in their factory during fermentation could not be compared with the carbon dioxide available in the market; that it is well settled law that marketability of the goods in the form in which the same are cleared has to be proved and therefore just because, the carbon dioxide, generated in the respondent's unit may become marketable after purification the same cannot be presumed to be marketable; that in this regard he relies upon the Apex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice itself accepts that the manufacture of carbon dioxide had been declared by them to the department and just because the take over of Malt Unit of M/s. Maltex Malsters Limited had not been declared, it cannot be presumed that they had suppressed the fact of manufacture and captive consumption of carbon dioxide. He pleaded that the take over of the Malt Unit of M/s. Maltex Malsters Limited by the respondent is of no relevance to the point of dispute in this case. He, therefore, pleaded that there is no infirmity in the impugned order. 5. We have considered the submissions from both the sides and perused the records. 6. The respondent are the manufacturer of beer. In the course of fermentation process, of carbon dioxide is generated which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... marketable by removing the impurities which was not there in the assessee's factory and the burden to establish marketability has not been discharged by the Revenue. 7. We find merit in the respondent's plea that the carbon dioxide which is generated during fermentation process would have certain impurities of methane, alcohol, etc. and for making it marketable as carbon dioxide gas, the same would have to be purified for which a separate plant is required. In this case it is not the allegation of the department that there was a separate plant in the respondent's unit for purification of the carbon dioxide. It is a well settled law that marketability of the goods in the form in which the same are cleared for captive use has to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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