TaxTMI 
TaxTMI 
2001 (5) TMI 108
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....s, therefore, allowed by remand in the above terms." 2. Appellants contend that they had drawn samples and tested but they have not informed the Department about the percentage of sugar syrup. They submit that in this regard, the Chief Chemist, Central Revenues vide his letter dated 24-2-1997 has written to the AC, Central Excise Division Rajahmundry which is extracted below :- "Sub : Central Excise - Retest of Raw Sugar Syrup - M/s. Sri Sarvaraya Sugars Ltd. - Reg. ----- Please refer to letter OC No. 256/96, dated 4-6-1996 from Superintendent of Central Excise Range I, Rajahmundry on the above subject. The sample of sugar syrup received under the cover of above mentioned letter from Superintendent was registered here vide Lab. No. CLR/9E-49/163, dated 19-8-1996 and analysed with the following results. The sample is in the form of colourless liquid. It is sugar syrup containing small amount of citric acid. The sample does not show any sign of deterioration. "Syrup" (Sucrose 667g, purified water sufficient to produce 1000g) finds mention as a monograph at page 1119 on O.P. 1995, one or more suitable antimicrubial preservatives may be added. It is also mentioned ....
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.... has got shelf life. (v) In agreement with the assessee's contention that the criteria for dutiability is marketability and for a product to be marketable, it should have shelf-life, the Revenue has proved beyond doubt that the syrup has shelf-life thus marketable and hence dutiable. Accordingly, I pass the following order. ORDER The assessee's contention is not acceptable. The raw sugar syrup manufactured by them has citric acid in it. It has shelf life. It is marketable. It is dutiable. Hence, the declaration filed under Rule 173B w.e.f. 1-5-1995 stands rejected and holds that the sugar syrup is classifiable under Ch. 1702.50 of Central Excise Tariff Act, 1985 and is dutiable at 10% ad valorem when used or an intermediate product in the manufacture of Maaza Mango. The assessee is directed to file the declaration under Rule 173B accordingly." 5. The findings of the Asstt. Commissioner were confirmed by the Commissioner (Appeals) by holding in paras 4 to 6 as follows : - "4. I have examined the impugned order and the contentions of the appellants carefully. While replying to the show cause notice, the appellants contended that the fun....
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....the show cause notice or at the time of P.H. Therefore, this new ground raised at the stage of the appeal cannot be entertained. Accordingly. ORDER I find no infirmity in the Adjudication Order and the appeal is rejected." 6. Shri C. Sarabheswara Rao, ld. Consultant attacked both the orders on the ground that the remand order has not been applied properly and the test laid down by the remand order has not been properly adhered to. It is his contention that the raw sugar syrup does not have shelf life although it is captively used and admits its shelf life of more than 4 hours but according to him it is not marketable. He contends that Board's Circular had laid down 62° B for sugar brix for the purpose of liability of duty. As the same has not been found in the test report, the demand is not justified and requires to be set aside. He referred to Tribunal's judgment in the case of Hyderabad Bottling Co. Ltd. v. CCE, Hyderabad, 2000 (117) E.L.T. 340 which also remanded the case to find out about (i) the quantum of concentration of sugar in the sugar syrup i.e. whether it is above 65% or below 65%; and (ii) if any, citric acid is added, then the stage at which it is added dur....
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....in water separately was held to be classifiable under sub-heading 1702.30 of CETA. The findings clearly recorded that it was captively used and hence it is not marketable. The findings recorded in paras 4.1 to 5.1 are extracted below :- "4.1 We have carefully considered the pleas advanced from both sides. We do not find much merit in the arguments of the learned Advocate for the appellants that the sugar syrup is not a manufactured product inasmuch it is the form of sugar into a solution form. Sugar syrup is separately classifiable under Tariff sub-heading 1702.30. Marketability, no doubt, may be the burden of the Revenue to prove but there is no contrary evidence submitted by the appellants that the product is unstable and therefore, it cannot be marketed. Simply because they are not marketing, it cannot be inferred therefrom that the product is non-marketable. We, therefore, hold that sugar syrup is liable to duty. 4.2 However, on the plea of limitation we are of the view that the appellants have a strong case. The process of manufacture was well known to the Department. This process was in existence even before introduction of the new Tariff and it cannot be claimed ....