TMI Blog2015 (10) TMI 2134X X X X Extracts X X X X X X X X Extracts X X X X ..... s are known in the market for trading. The reasoning of the learned Commissioner (Appeals) that the job charges for manufacture of cream of mass production and ultimately for biscuits has been separately fixed by the principal manufacturer (M/s Parle) itself proves that sugar cream is different goods and separately available at the price fixed is mis-leading. The fact that the job charges are fixed separately for cream/biscuits by itself does not establish the marketability of the product which are wholly consumed in the manufacture of cream biscuits as per the specifications provided by the principal manufacturer. - to charge excise levy on the cream captively consumed it is necessary to support the contention of the marketability of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the appellant is before us. 2. The main plea of the appellant is that the intermediate product Cream manufactured and used captively by them in the manufacture of Cream Biscuits cannot be subjected to Central Excise levy as they have very limited shelf-life of 24 hours after which they lose their softness and are required to be re-processed. Further, it was pleaded that their product is not capable of marketed as such Cream. The Department has failed to adduce any evidence regarding the marketability of the Cream. They also contested the excise levy on the ground that the impugned product is nothing but 'Mishthan' or 'Mithai' having such characteristics and are fully exempt under Notification No. 3/2006-CE dated 01/3/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessarily actual sale of the very same goods made by the appellant). In this regard, the findings of the original authority is reproduced as below:- I do not agree with the said contention of the assessee as there are several manufactured goods which are suitable for a particular user but that does not mean that it is not marketable and therefore cannot be subjected to Central Excise Duty. I find that the producer sugar based paste/cream manufactured by the assessee is marketable and therefore subject to the levy of Excise duty. In A.P. State Electricity Board vs. CCE, Hyderabad., 1994 (2) SCC 428 it was observed by the Hon'ble Supreme Court that the goods are not in fact marketed is of no relevance. So long as the goods are mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m/biscuits by itself does not establish the marketability of the product which are wholly consumed in the manufacture of cream biscuits as per the specifications provided by the principal manufacturer. 5. Considering the above discussion, we are of the view that to charge excise levy on the cream captively consumed it is necessary to support the contention of the marketability of the product with evidence which may include the details of shelf-life, general availability of market for such product, market inquiry etc. As there is no detailed discussion in the proceedings of the lower authorities, we remand the matter back to the original authority for detail examination of these issues and to pass fresh orders. The appellant shall be give ..... X X X X Extracts X X X X X X X X Extracts X X X X
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