TaxTMI 
TaxTMI 
2016 (9) TMI 678
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.... 0 6. 11-12-C.EX/OFF/ACK-II/13 Dt. 31.01.2013 Nov., 2009 to May 2010 & June 2010 to Nov. 2010 935636 7. 49-C.EX/Off/ACK-II/12 Dt. 31.12.2012 Dec.2009 to July, 2010 2533 2533 0 8. 41/APAR AAYUKTA/KENDRIYA UTPTHYA,2012 dt. 09.11.2012 Dec. 2010 to Sept., 2022 1647050 1647050 9. 41/APAR AAYUKTA/KENDRIYA UTPTHYA,2012 dt. 09.11.2013 Appeal Ofsri Sudhir Kumar Gupta Authorised Signatory of M/s Bhagwati DO 0 200000 2. The brief facts of case are:- M/s Bhagwati Foods Pvt. Ltd, Kanpur (here-in-after referred to as the appellant), holder of Central Excise registration No. AABCB33680PXM003 are engaged in the manufacture of Biscuits of Tiger Brand and others for Britania Biscuits (here-in-after referred to as finished goods) ranging from Rs. 44/- per kgs. to Rs. 100/- per Kgs., falling under Chapter Sub Heading No. 19053120 of the Schedule to the Central Excise Tariff Act, 1985. 3. On the basis of scrutiny of E.R.-1 returns submitted by the appelant, it has come to the notice that the appellant is not showing the production of Sugar Syrup which is being ma....
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....of hot water at 100 degree C, 100 kgs. Sugar is added and stirred until it is completely dissolved. Thereafter 200 gm citric acid, an anti oxidant is mixed to it and then the solution is cooled and filtered and finally 102-104 Kg of Sugar Syrup is recovered. He further added that for the manufacture of 100 kgs, Biscuits, approx. 2.5 kgs. Sugar Syrup is used. 8. On perusal of ER-1 returns submitted by the party for the period Dec'10 to Sep'11, it was found that no details of Sugar Syrup i.e. quantity of production, and captive consumption etc. were being given in the said monthly returns. Also the appellant is not paying Central Excise duty on the Sugar Syrup consumed captively in the manufacture of exempted finished goods. All the ER-1s contain the details of Biscuits manufactured and cleared by them without payment of duty as per Notification No. 22/2007-CE dated 03.05.07, but they have not mentioned the production and captive consumption of the intermediate goods (i.e. Sugar Syrup) in any of the ER-1. 9. Accordingly a show cause notice issued to the pray requiring them to show cause as to why:- (i) Central Excise duty amounting ....
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....nbsp; The test of marketability is that the product which is made liable to duty must be marketable in the condition in which it emerges. (c) CCE V. UNITED PHOSPHORUS LTD. -2000-117-ELT-529 (SC) (d) GUJRAT NARMADA VALLEY FERTILIZER CO. LTD. V. CCE 2005 - 184 - ELT - 128 (SC). (e) CCE V. JAGAJIT INDUSTRIES LTD - 2002 - 141- ELT - 306 (SC) (f) CCE V. AMBALAL SARABHI ENTERPRISES - 1989 - 43 - ELT - 214 In the present case admittedly none of these judicially laid down guidelines are shown to be satisfied and therefore the duty demand is wholly unjustified in law. 12. They also stated that the Department has not even tested the sugar syrup, captively manufactured, in the Chemical Laboratory so as to hold that it satisfied the technical characteristics of sugar syrup falling under Chapter heading 1702. This was essential and statutorily required before alleging that the sugar syrup is dutiable. Therefore, the onus cast on the department has not been discharged. The reliance on HSN by the adjudication authority is of no help for the reason that unless the test of marketability is satisfied, the question of fitting in the commodity in an entry ....
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....on under Rule 6 of the Cenvat Credit Rules. We do not accept this plea, as in terms of proviso to Notification No. 67/95-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. Chen....
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.... goods, in question, are covered by sub-heading 17029090, 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. 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 th....