2024 (12) TMI 1296

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....pondent; hence, the appeal is taken up for disposal on the basis of the records. 2. This appeal is filed against Order-in-Appeal No.316/2012 passed by the Commissioner of Central Excise (Appeals), Mangalore. 3. Briefly stated the facts of the case are that the respondents are engaged in the manufacture of Biscuits falling under Chapter Heading 1905 9020 of Central Excise Tariff Act (CETA), 1985. During the course of manufacture of Biscuits, an intermediary product viz., sugar syrup/solution falling under Chapter Subheading 1702 1990 emerges which are captively consumed within the factory of production. It is alleged that the benefit of captive consumption Notification No.67/1995 dated 16.03.1995 being not admissible to respondent as t....

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....g and recorded reasons as to why sugar syrup manufactured by the assessee is dutiable as the same is stable product and capable of being marketable. It is submitted that in terms of Explanation to Section 2(d) of Central Excise Act, 1944, capability of being bought and sold was sufficient to render a product excisable and the original authority has categorically held that the sugar syrup manufactured by the respondent satisfied the said condition and capable of being bought and sold in the market. In support, he has referred to the judgment of this Tribunal in the case of Homemade Bakers (India) Ltd. vs. CCE, Rotak: 2012 (280) E.L.T. 429 (Tri.-Del.). Further, he has referred to the judgment of this Tribunal in the case of Pomsy Food Product....

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.... of Central Excise and Service Tax, Bangalore vs. Karnataka Soaps & Detergents Ltd.: 2017 (355) ELT 161 (S.C.) and M/s. Escorts Ltd. vs. Commissioner of Central Excise, Faridabad: 2015 (319) ELT 406 (SC). 7. In Karnataka Soaps & Detergents Ltd. case explaining the scope of marketability their Lordships observed as follows : "11. The next question for consideration is whether actual marketing of the perfumery compound manufactured by the respondent is necessary for the levy of excise duty. It is settled that to hold the product as excisable/dutiable, actual marketing/sale of goods is not necessary. What is required to be proved is that the capability of marketing the product. Marketability is decisive test for dutiability. Whethe....

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....r of purchasers nor is the market confined to the territorial limits of this country." 8. Also in Escorts Ltd. (supra) case, their Lordship observed as follows : " 14. From this judgment, Shri Lakshmikumaran wished to emphasise that, as in the said judgment, Transmission Assemblies were not available in the market for being bought and sold, they were not excisable goods not being marketable. As has correctly been pointed out by Mr. Gupta, learned Senior Counsel appearing on behalf of the Revenue, what was held in this judgment is that the product should not be known in the market with any commercial name. The moment a product is commercially known in the sense of fulfilling the practical test of being known to persons in the mar....

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....ble. "7. We have carefully considered the submissions and perused the records. As seen from the citations referred to by the learned Counsel, sugar syrup should have sugar content of more than 65% of weight for considering it as a dutiable as held in the case of Himalyan Vegi Fruits Ltd. v. CCE, Chandigarh (supra), CCE, Indore v. Venkatesh Beverages (supra) and Shivambu International v. CCE, Chandigarh (supra), in both these cases, the matter was remanded for de novo to ascertain the percentage of sugar concentration in the syrup. In the present case, the Revenue has not taken samples to find out the percentage of sugar syrup. It was an important characteristic for determining the solution as sugar syrup or not." 10. Similar vie....

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....b report bearing reference Lab Cx No 89/08-09 dated 26.12.08 given on 01.10.2009, The sample is in the form of pale yellow soft solid mass containing Sugar and Water. The total sugar content in the sample as received is 78.2% by weight. Presence of any other additive could not be established'. 10. The Tribunal in the case of CCE v/s Venkatesh Bevarages - 2001(128) EL T 75 held sugar solution at intermediate stage containing less than 65% sugar by weight should not be considered as sugar solution. In the instant case, the sugar content is 78.2%. The sugar syrup/solution prepared by the party and used by them in the manufacture of biscuits, on a reasonable presumption would have been made with due care by selecting sucrose carefu....