TMI Blog2023 (7) TMI 475X X X X Extracts X X X X X X X X Extracts X X X X ..... RAMAKRISHNA BAKERS PVT. LTD., SHRI RAJIV TALREJA, DIRECTOR, M/S SWATI BISCUIT MANUFACTURING CO., SHRI OM PRAKASH SHYAMDASANI, PARTNER VERSUS CCE ST, KANPUR [ 2015 (4) TMI 893 - CESTAT NEW DELHI] where it was held that Neither there is any evidence to prove that the goods, in question, are classifiable under 17029090 nor there is any evidence to prove that the goods, in question, in form in which they come into existence in the appellant s factories, are marketable. The department has not put forward any evidence to establish that the Sugar Syrup is the marketable product. The demand therefore cannot sustain and requires to be set aside - Appeal allowed. - Excise Appeal No. 40607-40609 of 2013 - FINAL ORDER Nos.40548-40550/2023 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of biscuits they prepare sugar syrup inside the factory by adding sugar with water and small amount of citric acid which is heated to make a mixture. The said sugar syrup is used in semi hot condition for manufacture of biscuits. The appellants did not pay duty on Sugar Syrup by availing exemption under Notification No. 67/95-CE dated 16.03.1995 with effect from 01.03.2007 though biscuits cleared in packaged form mentioning per kg retail sale price not exceeding Rs.100/- was exempt under Sl. No. 18A in terms of Notification No. 03/2006-CE. As the Sugar Syrup manufactured by the appellant was not marketable in the form in which it is prepared, the appellants did not pay duty on the Sugar Syrup and intimated the same to the jurisdictional C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the benefit of Notification No. 67/95-C.E. would not be available. In this regard, the contention of the appellant is that in terms of the proviso to Notification No. 67/95-C.E., the full duty exemption 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-C.E., the full duty exemption to intermediate product is available under this 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 1702 90 90, 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 1702 90 90, it cannot be presumed that they had accepted that the goods, in q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produced by a particular manufacture 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 being manufactured by M/s. DhampurSpeciality Sugar Ltd. is being sold to M/s. Britannia Industries, M/s. J.B. Managaram 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 ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd captively consumed can be subject to levy of duty. The said issue is decided by the Tribunal in the case of M/s. Badami Goods (supra) and M/s. Rishi Bakers Pvt. Ltd., Vs. Commissioner of Central Excise Service Tax, Kanpur reported in 2018 (328) ELT 634 (Tri.-Delhi). On similar set of facts the contention of the department that sugar syrup is marketable and, therefore, subject to levy of duty was rejected by the Tribunal. The department does not have a case that they have conducted any test to prove the element of fructose contained in sugar syrup in these appeals . The decision in M/s. Rishi Bakers Pvt. Ltd. (supra) as well as M/s. Badami Foods (supra) would squarely apply to the facts of the present case. Following the said decisions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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