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2015 (10) TMI 2134 - CESTAT NEW DELHI

2015 (10) TMI 2134 - CESTAT NEW DELHI - TMI - Marketability - making of cream within their factory by mixing ingredients like sugar, Vanaspati, milk powder, flavour etc. to be used in the Manufacture of cream biscuits under Parle brand name on job works bases - Captive consumption - Exemption under Notification No. 67/1995-CE - Held that:- In respect of the impugned goods it is necessary for the Department to establish the marketability (not necessarily actual sale of the very same goods made by .....

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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 the product with evidence which may include the .....

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k basis. For use in the manufacture of Cream biscuits, they make cream within their factory by mixing ingredients like sugar, Vanaspati, milk powder, flavour etc. They have their own specifications for addition and mixing of ingredients for specific proportionate for different flavours like Choco, Orange etc. The dispute arose regarding the tax liability of such cream made by them and used captively in the manufacture of Cream Biscuits. Since Biscuits of MRP below ₹ 100/- per kg. were exem .....

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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 .....

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ods even if not marketed but otherwise marketable is also not categorically established. She has stated further that appellants on their part have produced statements and other evidences from the persons who are dealing such bakery products to establish that the Cream with specific formulation and flavour made by them is not known in the market and it is not generally brought and sold. On the other side, the Department did not counter this evidence and also did not produce any evidence to the ef .....

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sed or established by the evidence by the lower authorities. We find in respect of the impugned goods it is necessary for the Department to establish the marketability (not 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 .....

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t the goods in question should be generally available in the market. Even if the goods are available from only one source or from a specified market, it makes no difference so long as they are available for purchasers. I therefore find that the cream manufactured by the assessee though it was not marketed by them but was capable of being sold in the market and is known in market. So I do not agree with the assessee's contention that the Central Excise Duty was not leviable on the sugar based .....

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