2016 (10) TMI 739

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....pal (Parle Products Pvt. Ltd.). 2. The appellants are engaged in the manufacture of biscuits on behalf of M/s Parle Products Pvt. Ltd. on job work basis . During the course of manufacture of biscuits, sugar syrup is prepared and used captively by the appellants. With effect from 1.3.2007, biscuits were exempted by the Notification No.3/2006-CE dated 1.3.2006. Revenue entertained a view that since final products ( biscuits) are exempted , the intermediate product , sugar syrup arising in the appellant s unit is liable to central excise duty as the exemption under Notification No.67/1995-CE dated 16.3.95 will not be available to them. Accordingly, proceedings were initiated to recover the central excise duty. The original authority confirm....

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.... 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 (....

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....e cases of Gujarat Narmada Valley Fert. Co. Ltd. v. CCE & Cus. (supra), Nicholaas Piramal India Ltd. v. CCE, Mumbai (supra) and Medley Pharmaceuticals Ltd. v. CCE & Cus, Daman (supra) cited by the learned DR are not applicable to the facts of this case. 10. In view of the above discussion, we hold that neither there is any evidence to prove that the goods, in question, are classifiable under 1702 90 90 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. We, therefore, hold that the impugned order is not sustainable. The same is set aside. The appeals are allowed with consequential relief." Similar view was taken in C.C.E.., Jaipur....