TMI Blog2019 (7) TMI 1790X X X X Extracts X X X X X X X X Extracts X X X X ..... imultaneous truth with this cream is specific to each manufacturer who customises it to maintain a particular taste of his brand of biscuit. Hence the cream as such has no marketability as no other manufacturer in the given circumstances would like to purchase the cream of other manufacturer. That cream/flavoured cream, intermediately, manufactured and captively used for manufacture of biscuits have now been exempted from 12.9.2011, in view of insertion of entry No. 19 in Notification No. 10/96-CE dated 23.7.96 vide Notification No. 39/2011-CE dated 12.9.2011. The cream which is produced captively is having unique flavour, colour and taste and the cream biscuits manufactured by different manufacturers have different flavours and taste. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ange Oil and SMP by simply mixing the same. During the course of the audit, the Department observed that during the period 1.11.2010 to 31.3.2011, appellant has cleared 3193168.120 kg. cream biscuits in which 638633.624 kg of sugar based cream valued at ₹ 2,93,06,897/- was used on which Central Excise duty amounting to ₹ 12,74,540/- was payable but the same has not been paid by the appellant. Resultantly, a Show Cause Notice No. 2142 dated 26.9.2011 was served upon the appellant proposing the said recovery along with interest and the penalties. The said proposal was initially confirmed vide order No. 101-103/2012 dated 28.12.2012. The appeal thereof was rejected vide the Order-in-Appeal No. 153/2018 dated 27.3.2018. Being aggrie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as the cream is made suitable for use in the appellant s biscuits only which they are manufacturing for M/s Parle Biscuits. In these circumstances cream even though covered in the Central Excise Tariff under CSH 1704 90 90, it would not be subjected to duty for lack of marketability. Learned Counsel has relied upon the decision of Hon ble Supreme Court in the case of Moti Laminates 1995 (76) ELT 241 (SC). 4. It is also impressed upon that the appellants are otherwise job workers manufacturing cream and cream biscuit on contract basis for M/s Parle Biscuits, Mumbai on principal to principal basis for which job charges are paid to them as per the agreement dated 12.6.2007/1.3.2007 and the said job charge @ ₹ 0.05 per kg include ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ein has good amount of fact constituting 23% of the total paste. Secondly, the cream herein is not used for transformation into sugar confectionery nor admittedly it is used for filling of chocolate etc. except that it is used in the cream biscuits which are admittedly exempted from duty. Thirdly the cream is mentioned to be a customised paste of each biscuit manufacturer as is apparent from the appellant s contention with no denial thereof, nor any evidence to the contrary thereto being produced by the Department. 8. It is apparent from appellant s contention that each biscuit manufacturer while manufacturing a cream biscuit has to prepare a cream to be sandwitched between two shells of the biscuit. This cream is prepared from few ingre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... product, the Hon ble Supreme Court has laid down the test of marketability as a relevant criterion. From the above discussion, it is clear that the cream is not marketable. Department also has not adduced any evidence of marketability of Cream. Appellants rather has annexed herewith 7-Certificates issued by Traders/Dealers of Edible products stating that Cream is not sold in the market and not capable of being bought and sold in ordinary course. 9. Above all the issue is no more res integra as it has already been decided by this Tribunal in the case of M/s Bhagwati Foods Pvt. Ltd. Vs. CCE, Jaipur vide Final Order No. 70838-70840/2018 of 2018 wherein the decision of Coordinate Bench in the case of Rishi Bakers Pvt. Ltd., Kanpur vide ..... X X X X Extracts X X X X X X X X Extracts X X X X
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