TaxTMI 
TaxTMI 
2015 (4) TMI 893
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....Pvt. Ltd. and Shri Om Prakash Shyamdasani is the partner of M/s Swati Biscuit Manufacturing Co. The period of dispute in the appeal of M/s Rishi Bakers Pvt. Ltd. is from January 2009 to June 2009. The period of dispute in the case of appeal filed by M/s Ramakrishna Bakers Pvt. Ltd. is February 2010 to June 2010 and period of dispute in the case of M/s Swati Biscuit Manufacturing Co. is from January 2002 to June 2009. During this period, the biscuits in packaged form with per kg retail price equivalent not exceeding Rs. 100/- were fully exempt from duty. The appellant during some period were manufacturing only the exempted biscuits and during other period exempted as well as dutiable biscuits. For manufacture of the biscuits, the appellant prepare a sugar syrup by dissolving cane sugar in water at 108 degree Celsius temperature and adding very small quantity of citric acid. This sugar syrup was being used in the manufacture of the biscuits. The Department was of the view that since biscuits of retail sale price equivalent not exceeding Rs. 100/- per kg. were fully exempt from duty, the benefit under exemption Notification No. 67/05-CE would not be admissible in respect of sugar syru....
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....ach of the appellant company M/s Rishi Bakers Pvt. Ltd., M/s Ramakrishna Bakers Pvt. Ltd. and M/s Swati Biscuit Manufacturing Co. to deposit an amount of Rs. 1,00,000/- within a period of four weeks for compliance with the provision of Section 35F and subject to this pre-deposit being made, the requirement of pre-deposit of balance amount of duty demand confirmed, interest and penalty by the appellant companies and the requirement of pre-deposit of penalty by the Directors/Partner of the appellant company/firm would stand waived and its recovery stayed during the pendency of the appeals. The appellant, thereafter, complied with this stay order. 1.4 Subsequently, the Tribunal vide stay order dated 4th February 2014 extended the stay order against which the Department filed appeal before Hon ble Allahabad High Court. Hon ble Allahabad High Court vide order dated 25/9/14, while not interfering with the Tribunal s order extending the stay, directed the Tribunal to decide these matters within a period of six months from the date of the order. Accordingly, these appeals have been taken up for final hearing. 2. Heard both the sides. 3. Shri M.H. Patil, Adv....
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....the above submissions, the impugned orders are not sustainable. Shri Patil also pleaded that since the dispute in this case pertains to interpretation, the penalty on the appellant company as well as on Director was not called for, as earlier, the appellant were paying duty in respect of captive clearance of sugar syrup till June 2008 and thereafter, after intimating the Department, they stopped the payment of duty of the sugar syrup. 4. Shri R.K. Grover, the learned DR, defended the impugned order by reiterating the findings of the Commissioner (Appeals) and pleaded that the appellants have not disputed the classification of the sugar syrup under heading 17029090 and that since similar goods were being sold by M/s Dhampur Speciality Sugars Ltd. to M/s Britannia Industries, M/s J.B. Mangaram Food Industries and M/s ITC Ltd., the goods, in question, have to be treated as marketable. Shri Grover cited the judgments of Nicholas Piramal India Ltd. vs. CCE, Mumbai reported in 2010 (260) E.L.T. 338 (S.C.), wherein it was held that shelf-life of product is not a relevant factor to test marketability unless it is shown that product has absolutely no shelf-life or shelf-life is such that....
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..../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 product or alongwith the exempted final product were also manufacturing dutiable final product. The proviso to notification is applicable only in a situation where by using common Cenvat credit availed inputs, a manufacturer manufactures dutiable as well as exempted final product and in respect of the exempted final product, the obligation under Rule 6 of the Cenvat Credit Rules has been discharged. Shri Patil in this regard has cited the judgment of the Tribunal in the case of Sakthi Sugars Ltd. vs. CCE, Salem reported in 2008 (230) E.L.T. 676 (Tri. Chennai). We have gone through this judgment. In our view ratio of this judgment is not applicable to the facts of ....
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....he 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. vs. 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 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 pres....