TaxTMI 
TaxTMI 
2024 (4) TMI 4
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....of duty availing benefit of Notification No.3/2006-CE dt. 01/03/2006 as amended by Notification No.22/2007-CE dated 03.05.2007. During the manufacture of biscuits, at intermediate stage, sugar syrup is manufactured by inversion of sugar. The sugar syrup is capable of being brought and sold and hence marketable. Since the sugar syrup is an excisable goods falling under heading No.1702.90.90 of CETA, 1985, benefit of exemption Notification No.67/1995 -CE dated 16.03.1995 being not available as the said sugar syrup is used in the manufacture of final products viz. biscuits charged to nil rate of duty; hence show-cause notice was issued to them on 26.05.2012 demanding duty of Rs.7,40,057/- on the quantity of sugar syrup used captively in the manufacture of biscuits for the period from May, 2007 to September 2011 invoking extended period with interest and proposal for penalty. Subsequently, two periodical show-cause notices were issued i.e. on 02.11.2012 for the period October 2011 to July 2012 demanding duty of Rs.1,83,747/- and on 21.08.2013 for the period August, 2012 to April 2013 demanding duty of Rs.1,29,218/- with interest and penalty. On adjudication, by a common order, total de....
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.... hence question of determining its shelf life by the appellant did not arise. The said argument was rejected on the ground that the onus to prove the goods were not marketable has not been discharged by the appellant. He has submitted that the reliance placed by the adjudicating authority on Wikipedia to conclude that the sugar syrup produced by the appellant did not lack shelf life cannot be accepted to decide the issue like 'marketability'. In support, he placed reliance on the judgment of the Hon'ble Supreme Court in the case of Ponds India Ltd. Vs. Commissioner of Trade Tax, Lucknow [2008(227) ELT 497 (SC)] and Hewlett Packard India Sales Pvt. Ltd., Vs. CC(Import), Nhava Sheva [judgement dt. 17.10.2023 in Civil Appeal No.5373 of 2019 and 6715 of 2019]. 3.1. Further, he has submitted that this Tribunal in the case of Himalayan Vegi Fruits Ltd. Vs. CCE, Chandigarh [2005(179) ELT 477 (Tri. Del.)] held that the onus to prove that the goods were marketable rests with the Department. Similarly, it was also held by the Tribunal in the case of Annakut Biscuit Co. Pvt. Ltd. Vs. CCE, Kanpur [2010(250) ELT 533 (Tri. Del.)]. He also relied upon the following case laws : - i. Ambaji Food....
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....Consequently, imposition of penalty under Section 11AC of Central Excise Act also cannot be sustained. Further, he has submitted that the penalty imposed under Rule 25 of the Central Excise Rules in relation to the periodical show-cause notices issued is not legal and proper since the issue relates to interpretation of law. 4. Learned AR for the Revenue reiterated the findings of the learned Commissioner (Appeals). 5. Heard both sides and perused the records. 6. The short issue involved in the present appeal is whether: (i) sugar syrup emerged as an intermediate product consumed captively in the manufacture of exempted final product viz. biscuits during the period from May 2007 to April 2013 is leviable to duty; (ii) the show-cause notice dated 26.05.2012 issued for the period May 2007 to September 2011 is barred by limitation. 7. Undisputedly, the appellants are manufacturing biscuits, which attracts 'nil' rate of duty as per Notification No.3/2006-CE dated 01.03.2006 as amended by Notification No.25/2007-CE dated 03.05.2007. It is also not in dispute that in the process of manufacture of biscuits, an intermediate product viz. sugar syrup emerges, which falls under the Chapter....
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....scloses any analysis of the materials on record to arrive at any finding regarding capability of the product being sold in the market or the same as being known to the market as the goods. Before relying upon any decision, it is necessary for the Adjudicating Authority to analyse the materials in relation to the facts of the case and to ascertain whether the reported decision of the higher authority is applicable to such the facts of the case in hand. 12. Plain reading of the orders passed by both the lower authorities apparently, therefore, discloses failure on the part of the authorities to consider the issue of marketability in the manner it was required to be decided as rightly pointed out by the learned advocate for the appellants. The authorities will have to analyse the materials on record and thereafter ascertain whether the same reveal the marketability of the product or not and accordingly decide about the duty liability. Since the authorities below have failed to carry out this exercise before confirming the demand, the orders passed by the lower authority are required to be set aside and the matters need to be remanded to the Adjudicating Authority to decide the same ....