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Parle Biscuits Pvt. Ltd. Versus CCE & ST, Alwar (Vice-versa)

2018 (1) TMI 465 - CESTAT NEW DELHI

Benefit of N/N. 67/95 dated 16/03/1995 - intermediate product namely sugar syrup (prepared within the factory, used in manufacture of biscuits) - Held that: - the issue has already come up before the Tribunal in the case of M/s Ganesh Bakers Pvt. Ltd. V/s CCE & ST, Raipur [2017 (11) TMI 471 - CESTAT NEW DELHI], where relying in the case of Lucky Biscuit Company vs. CCE, Patna [2017 (7) TMI 235 - CESTAT KOLKATA], where it was held that CBEC Circular dated 7.11.1994 relied upon by the lower author .....

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- Dated:- 20-11-2017 - Dr. Satish Chandra, President and V. Padmanabhan, Member (Technical) Present Shri Jatin Mahajan, Advocate for the appellant Present Shri S.K. Bansal, DR for the respondent ORDER Per: Justice Dr. Satish Chandra 1. First three appeals have been filed by the appellant against the Order-in-Appeal No. 7-10/2016 dated 27/01/2016 and for the period of 01/08/2008 to 31/05/2011. The last cross appeals have been filed against the Order-in-Appeal 6-7/2017 dated 28/02/2016 for the pe .....

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t as well as Shri S.K. Bansal, Ld. DR for the Revenue and perused the appeal record. 4. After hearing both the parties and on perusal of record, it appears that the issue has already come up before the Tribunal in the case of M/s Ganesh Bakers Pvt. Ltd. V/s CCE & ST, Raipur (Final Order No. 56814/2017 dated 27/09/2017) where it was observed that :- 4. After hearing both the sides, it appears that the identical matter had come up before this Tribunal in the case of Lucky Biscuit Company vs. C .....

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to ascertain the precise fructose content of the goods, any conclusion that the goods are classifiable under sub-heading 17029090 is not sustainable. We also find that the CBEC Circular dated 7.11.1994 relied upon by the lower authorities has been issued in respect of sugar syrup produced in the manufacture of aerated water and ayurvedic medicines. Hence, the same cannot be applied to the sugar syrup being produced for the biscuits without establishing that the two products are identical. We al .....

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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 the product must contain 50% by weight of fructose sugar in dry state. In these cases, the appellant s plea from the very beginning has been that the fructose sugar content is less than 50% and in this regard they have produced the test report of Shriram Institute of Industrial Resea .....

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me under sub-heading 1702 90 90, it cannot be presumed that they had accepted that the goods, in question, conform to the description of sugar syrup blends of sub-heading 1702 90 for which the sugar syrup in dry stage must contain 50% by weight of fructose. The Apex Court in the case of Metlex (I) Pvt. Ltd. v. CCE, New Delhi reported in 2004 (165) E.L.T. 129 (S.C.) has held that filing of classification list mistakenly does not mean that party has to pay duty, if in law, he is not bound to pay d .....

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g 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 that the test of marketability is whether produc .....

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ur 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 (sucrose, a disacchar .....

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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, .....

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