TMI Blog2017 (11) TMI 1462X X X X Extracts X X X X X X X X Extracts X X X X ..... biscuits - Held that: - test i.e. marketability has not been examined by the lower authority in the instant case. When it is so, then we set aside the impugned order regarding the cream and remand the matter back to the adjudicating authority to examine the test of marketability of the cream and decide the matter denovo - matter on remand. Appeal allowed in part and part matter on remand. - Excise Appeal No.53043 of 2014 - A/57631/2017-EX[DB] - Dated:- 30-10-2017 - Mr. (Dr.) Satish Chandra, President And Mr. V. Padmanabhan, Member (Technical) Shri R Krishnan, Advocate for the Appellants Shri S K Bansal, DR for the Respondent ORDER Per: (Dr.) Satish Chandra The present appeal is filed against Order-in-Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to intermediate products being used for captive consumption is available if a manufacturer discharges the obligation under Rule 6 of the Cenvat Credit Rules. We do not accept this plea, as in terms of proviso to Notification No. 67/95-CE, the full duty exemption to intermediate product is available under this notification, even if the manufacturer has manufactured, in addition to exempted final product, a dutiable final product also by using common Cenvat credit availed inputs and in respect of exempted final product, he has discharged the obligation prescribed under Rule 6 of the Cenvat Credit Rules. In this case, it is now known as to whether the appellant throughout during the period of dispute, were manufacturing only exempted final ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Industrial Research. It is seen that the Commissioner (Appeals) has not given any finding on this plea. Not only this, there is no evidence to show that before seeking classification of the goods, in question, under sub-heading 17029090, the samples drawn from the goods had been got tested by the CRCL to confirm as to whether the fructose content of the goods, in question, in dry stage is 50% by weight. Just because the appellant during period till June 2008 were paying duty on the goods by classifying the same under sub-heading 17029090, it cannot be presumed that they had accepted that the goods, in question, conform to the description of sugar syrup blends of sub-heading 170290 for which the sugar syrup in dry stage must contain 50% by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing produced by another manufacturer, unless it shown that the two products are identical. In these cases, the Commissioner (Appeals) has held that the goods, in question, to be marketable only on the basis that the invert sugar syrup being manufactured by M/s Dhampur Speciality Sugars Ltd. is being sold to M/s Britannia Industries, M/s J.B. Mangaram Food Industries and M/s ITC Ltd. In our view this basis of holding that the goods, in question, are marketable is absolutely wrong, as it has been presumed that the sugar syrup being made by the appellants is identical to the invert sugar syrup being made by M/s Dhampur Speciality Sugars Ltd. for which there is no basis. Chemically, invert sugar is obtained by Hydrolysis of cane sugar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nable. The same is set aside. The appeals are allowed with consequential relief. 5. Similar ratio was followed by the Tribunal in a number of cases including in the case of Bhagwati Foods Pvt. Ltd. Final Order No.70409 -70417/2016 dated 30.6.2016. By following our earlier orders (supra), we are of the view that sugar syrup is not subject to excise duty so, we set aside the portion of the impugned order regarding sugar syrup. 6. Second issue in the instant case is regarding cream. The appellant prepared the spcieal cream with the specified flavour and taste which was used in the manufacture of biscuits, the department demanded the excise duty on the cream. During the course of arguments, learned counsel has drawn our attention t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
