TMI Blog2023 (4) TMI 1071X X X X Extracts X X X X X X X X Extracts X X X X ..... UIT COMPANY VERSUS COMMISSIONER OF CENTRAL EXCISE, PATNA [ 2017 (7) TMI 235 - CESTAT KOLKATA] it was held that 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. Since, the facts of the matter at hand are similar to one which have been cited, the same is followed and it is held that the impugned Order-In-Appeal is not sustainable - appeal allowed. - Excise Appeal No.10612 of 2013 - Final Order No. A/10937/2023 - Dated:- 20-4-2023 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. C.L. MAHAR, MEMBER (TECHNICAL) Shri Ishan Bhatt, Advocate for the Appellant Shri G. Kirupanandan, Assistant Commissioner ( AR) for the Respondent ORDER The brief facts of the matter are that the appellants are engaged in the manufacture of biscuits falling under Chapter Sub-heading 19053100 of Central Excise Tariff Act, 1985 on job work basis for M/s. ITC Ltd. The biscuits manufactured by the appellant are marketed an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he matter got adjudicated vide Order-In-Original dated 02.03.2012 wherein, all the charges of the show cause notice were confirmed by the said order. The remedial appeal to the Commissioner (Appeals) of the appellant also did not succeed and therefore, they are before us against the above mentioned Order-In-Appeal dated 19.02.2013. It has been the contention of the appellant that the department has failed to prove that their intermediate product Sugar Syrup falls under the category of goods as envisaged in Section 3 of the Central Excise Act, 1944. It has been argued that as per the provision of Section 3 of the Central Excise Act, 1944, the exciseability of the particular product has to satisfy two condition i.e. that the goods are manufactured or produced in India before excise duty is levied on them and same is mentioned in the Central Excise Tariff Act. The two conditions have to be cumulatively satisfied i.e. the process by which an item is obtained is process of manufacture and secondly, the item so obtained is commercially marketable and bought and sold in the market or known to be sold in the market. 3.2 It has further stressed that their intermediate product namely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otification 67/95-C.E. exempts intermediate products even if the final product is exempt, if the appellant follows the procedure prescribed under Rule 6 of CCR, which the appellants have done in this case. In view of the above, we find the impugned orders are unsustainable and deserve to be set aside and we do so. Similarly, in case of LUCKY BISCUITS COMPANY- 2017 (7) TMI 235-CESTAT Kolkata held as under:- 5. We find that the issue in the present case is whether sugar syrup made by the appellant for captive use in the manufacture of exempted biscuit is chargeable to central excise duty under sub-heading 17029090. We find that both the lower authorities have concluded that the sugar content is more than 80% on empirical basis without any chemical test having been done. In the absence of chemical test 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 appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, 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 that the test of marketability is whether product is marketable in condition in which it emerges. In this regard the marketability of the goods produced by a particular manufacturer cannot be presumed on the basis of the marketability of the similar goods in different condition being 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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