TMI Blog2017 (7) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... tablishing that the two products are identical - the decision in the case of Rishi Beckery vs. CCE Kerala [2015 (4) TMI 893 - CESTAT NEW DELHI] - appeal allowed - decided in favor of appellant. - E/718/2011, E/124/12, E/71359/13 & E/75392/15 - F/O-76068-71/2017 - Dated:- 14-6-2017 - Shri (Dr.) Satish Chandra, President And Shri Devender Singh, Member (Technical) Shri Jatin Mahajan, Advocate for the Appellant Sri A.Roy, Suptd.(AR) for the Respondent ORDER Per: Shri Devender Singh 1. The brief facts of the case are that the appellants are engaged in manufacture of Biscuits falling under sub heading No.1905 90 20 as franchisee of M/s. Parle Biscuits Pvt. Ltd., Mumbai. In the process of manufacture of Biscuits, suga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of another job worker of M/s. Parle in support of his contention. In the case of Rishi Beckery Vs. CCE Kerala [2015(328)ELT 634 (Tri.-Del.)], it was also contended that marketability of sugar syrup which is captively used for the manufacture of biscuits was not proved by the department. He also argued that the sugar syrup in dispute is not classifiable under 17029090 as fructose content was less than 50% in the test conducted by Sri Ram Institute for Industrial Research. He further argued that the appellants have not taken credit on input used for sugar syrup. Further, exemption would be available under Notification No.67/95-CE dated 16.03.1995 in view of Clause-6 to proviso thereof. He also contested that the penalty claiming that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts are identical. We also find that issue in this appeal is squarely covered by the judgment of the Tribunal in the case of Rishi Bakers Pvt. Ltd. (supra), wherein the Tribunal has held as under: 8. Next comes the question of classification. The Department has classified the product, in question, under sub-heading 1702 90 90. Sub-heading 1702 90 90 comes under the 6 digit sub-heading 1702 90 which covers other sugars including invert sugar and sugar syrup blends containing in the dry stage 50% by weight of fructose . The goods, in question, are sought to be classified under 1702 90 90 as sugar syrup blends containing in dry stage, 50% by weight of fructose . In our view for classification as sugar syrup blend in this sub-heading ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the goods under sub-heading 1702 90 90 is not sustainable, as absolutely no evidence has been produced by the Department to show that the fructose content of the goods, in question, in dry state was 50%. 9. Even if it is assumed that the goods, in question, are covered by sub-heading 1702 90 90, for attracting Central Excise duty the goods must be proved to be marketable. The Tribunal had remanded this matter to Commissioner (Appeals) for examining the question of marketability of the goods, in question. In this regard it is settled law that the marketability of a product has to be established in the condition in which it emerges. In this regard the Apex Court in the case of Bata India Ltd. v. CCE, New Delhi (supra) has held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure of glucose and fructose formed by hydrolysis of cane sugar is called invert sugar. The invert sugar has longer shelf life. Whether a sugar syrup is ordinary cane sugar syrup or is invert sugar syrup has to be ascertained by chemical test which has not been done. It is, therefore, totally wrong to presume a given sugar syrup as invert sugar syrup without test. The judgments of the Apex Court in the cases of Gujarat Narmada Valley Fert. Co. Ltd. v. CCE Cus. (supra), Nicholaas Piramal India Ltd. v. CCE, Mumbai (supra) and Medley Pharmaceuticals Ltd. v. CCE Cus, Daman (supra) cited by the learned DR are not applicable to the facts of this case. 10. In view of the above discussion, we hold that neither there is any evidence to p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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