2015 (10) TMI 2134

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....fications for addition and mixing of ingredients for specific proportionate for different flavours like Choco, Orange etc. The dispute arose regarding the tax liability of such cream made by them and used captively in the manufacture of Cream Biscuits. Since Biscuits of MRP below Rs. 100/- per kg. were exempted the question of exemption under Notification No. 67/1995-CE for the Cream captively consumed has arisen. The proceedings initiated against the appellant resulted in order-in-original dated 24/12/2009 in which the original Authority confirmed the demand on Cream captively consumed and imposed equal penalty. On appeal the original order was upheld by the learned Commissioner (Appeals). Aggrieved by the said impugned order, the appellan....

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....er this evidence and also did not produce any evidence to the effect of marketability of this product. The learned AR reiterating the findings of the lower authorities stated it is not necessary for the impugned goods to be marketed as such. The capability of the said goods to be brought and sold in the market will be sufficient for Central Excise purpose. He accepted that other than this general principle no additional evidence regarding the capability of the said goods to be bought and sold in the market or being known in the market as such has been discussed or established by the evidence by the lower authorities. We find in respect of the impugned goods it is necessary for the Department to establish the marketability (not necessarily a....

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....rt's observation regarding test of marketability no additional factors or evidence have been adduced with reference to the impugned goods. No test has been carried out regarding the shelf-life, the capability of storage, the availability of market for such goods and evidence to the effect that such similar products are known in the market for trading. The reasoning of the learned Commissioner (Appeals) that the job charges for manufacture of cream of mass production and ultimately for biscuits has been separately fixed by the principal manufacturer (M/s Parle) itself proves that sugar cream is different goods and separately available at the price fixed is mis-leading. The fact that the job charges are fixed separately for cream/biscuits....