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2016 (6) TMI 916 - CESTAT NEW DELHI

2016 (6) TMI 916 - CESTAT NEW DELHI - 2016 (344) E.L.T. 979 (Tri. - Del.) - Captive consumption - manufacture of sugar solution / syrup as intermediate product - marketability - During the course of manufacture of fruit drink the respondent also manufactured sugar syrup / solution which is captively consumed - Held that:- It is necessary for the Revenue to show positive evidence regarding marketability of the product. It may not be necessary to show that the respondent actually marketed such pro .....

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favor of assesse. - Appeal No. E/2775, 2776/2006-EX(DB) - FINAL ORDER NO. 51961-51962/2016-EX(DB) - Dated:- 3-6-2016 - MS. ARCHANA WADHWA, MEMBER (JUDICIAL) AND SHRI B. RAVICHANDRAN, MEMBER (TECHNICAL) For the Petitioner : Shri Govind Dixit, DR For the Respondent : Shri Vipul Aggarwal, Advocate ORDER PER B. RAVICHANDRAN: These two appeals are by the Revenue against the order dated 19.05.2006. The respondents are engaged in the manufacture of mineral water and fruit pulp based drinks (frooti). D .....

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and captively consumed is liable to central excise duty. A duty demand of ₹ 22,15,250/- was confirmed along with penalty of equivalent amount and penalty of ₹ 50,000/- on the manager of the respondent company. On appeal, the Commissioner (A) vide his impugned order set aside a original order and allowed the appeals. He concluded that the sugar solution / syrup is not a stable product having a proven marketability. As such Central Excise duty on the same is not payable. Aggrieved by t .....

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y known in the market. 3. Reliance was placed on Board s circular dated 12.03.2004 to assert that if the sugar syrup is marketable then the same is excisable without reference to percentage of sugar in the same. The Commissioner (A) s finding on time bar also is assailed on the ground that the respondent never intimated the department about the manufacture of sugar syrup. 4. The Ld. Counsel for the respondent submitted that the Commissioner (A) had examined all the issues, including various case .....

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etable. The fact that many circulars have been issued by the Board and the matter was the subject matter of many of Tribunals as well as High Courts decisions itself will go to show that there was considerable uncertainty regarding tax liability of the impugned goods and as such it is the case of the respondent that there can be no question of fraud or suppression for invoking the extended period in demand. 5. We have heard both the sides and examined the appeal records. The point of decision .....

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lity of the said product. In fact, no attempt has ever been made to indicate with evidence the marketability of the impugned goods, rather the marketability is presumed and taken for granted as can be seen in the grounds of appeal. 6. It is an admitted fact that the product in question has never been put to any analysis or test to find out the percentage of sugar content or presence of preservative or the duration of shelf life. No factual finding on any of these points are available with the au .....

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dated 12.03.2004 to assert that if the sugar syrup is marketable as such then it is excisable without reference to percentage of sugar concentration. It is obvious that the application of circular will mainly depend upon the question of marketability of the impugned goods. Respondent have categorically asserted that the sugar syrup emerging during the course of manufacture of fruit based juices is never stored and is never capable of being marketed due to both lack of shelf life and lack of any .....

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