TaxTMI 
TaxTMI 
2026 (5) TMI 263
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....peals), upheld Order-in-Original Nos. 101/2012-CEx dated 24.12.2012 and 18/2016 dated 28.07.2016, whereby excise duties along with applicable interest were confirmed. 3. Briefly stated the fact of the case are that the appellant are engaged in the manufacture of Biscuits, on a job-work basis, for the principal manufacturer, M/s. Parle Products Pvt Ltd., at their factory situated at Hyderabad. In the course of manufacture, sugar syrup is prepared within the factory by mixing sugar with water and a small quantity of citric acid, followed by heating the said mixture and after cooling the same, the said syrup is thereafter used captively in the manufacture of biscuits. 4. In respect of Appeal No. E/28086/2013, the Adjudicating Authority vide Order-in-Original dated 24.08.2010 had confirmed the demand and imposed a penalty of Rs. 10,00,000/- under Rule 25 of Central Excise Rules (CER). In appeal, the Commissioner (Appeals) vide Order-in-Appeal dated 31.01.2011, remanded the matter back to Adjudicating Authority for limited purpose of examining the marketability of sugar syrup. The Department challenged the said order before the Tribunal and Tribunal vide Order No. 931/2011 dated 2....
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....the sugar syrup is classifiable under 170290 is not correct, in as the fructose content is only 31% as certified by ShriRam Institute for Industrial Research, in support of in this contention reliance has been placed the decision of the Tribunal in Rishi Bakers Pvt Ltd., [2015 (328) ELT 634 (Tri.-Del.)], wherein, it was held that classification of sugar syrup under tariff 17029090 is not sustainable in absence of any evidence produced by the Department to establish that the fructose content in dry stage, was 50% or more. 11. It is further submitted that the contention of the Department representative that the condition of "containing in the dry stage 50% by weight of fructose" is not applicable for determining classification of 'invert sugar' is misplaced as the said condition applies only to 'sugar syrup blends and not to all categories such as invert sugar or others'. Acceptance of the Department's interpretation would amount to reading the word "and" as "or" in the expression "invert sugar", other sugar and sugar syrup, which is impermissible in law. 12. Learned Counsel for the appellant further submitted that the reliance placed by Department on the report of the chemical....
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.... (x) Balaji Bakers - Hon'ble CESTAT - Allahabad vide Final Order No. 7234372350/2018 dated 09.11.2017 15. Learned Commissioner as well as Adjudicating Authority have placed reliance on the judgment of Hon'ble Supreme Court in Bhor Industries Ltd., Vs CCE [1989 (40) ELT 280], wherein, it was held that PVC sheets used for manufacture of adhesive tapes, being is not marketable, are not liable to Central excise duty. The ratio of the said judgement, in facts, supports the case of appellants, in as much as sugar syrup in the form in which it emerges during the manufacturing process, is not marketable and therefore, not liable to Central Excise Duty. 16. Learned Authorized Representative for the Department reiterates the findings of the impugned order, inter-alia, submitted that product "sugar syrup" is classifiable under tariff 17029090, the goods is excisable and marketable. Exemption under Notification No.67/95-CE is not available since final product is exempted. 17. Learned Authorized Representative submitted that, as per the records, the process of manufacture of sugar syrup involves mixing sugar with water and meagre quantity of citric acid and then mixture is heate....
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....e duty under sub-heading 1702 90 90 of the Central Excise Tariff. The Department's contention is that since the sugar syrup is used in the manufacture of the exempted biscuits, the benefit of Notification No. 67/95-C.E. would not be available. In this regard, the contention of the appellant is that in terms of the proviso to Notification No. 67/95-C.E., the full duty exemption to intermediate products being used for captive consumption is available if a manufacturer discharges the obligation under Rule 6 of the Cenvat Credit Rules. We do not accept this plea, as in terms of proviso to Notification No. 67/95-C.E., 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 also manufacturing only exempted final product or along with the exempted final product were also manufac....
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....hat party has to pay duty, if in law, he is not bound to pay duty. Same view has been taken by the Apex Court in its judgment in the case of Bonanzo Engg. & Chemical P. Ltd., Vs CCE reported in 2012 (277) E.L.T. 145 (S.C.). In view of this, we hold that the classification of the goods under sub-heading 1702 90 90 is not sustainable, as absolutely no evidence has been produced by the Department to show that the fructose content of the goods, in question, in dry state was 50%. 9. Even if it is assumed that the goods, in question, are covered by subheading 1702 90 90, 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 manufacture....
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..... The same is set aside. The appeals are allowed with consequential relief." 23. The above ratio of judgment is directly applicable to the facts of the present case. The above decision of the Tribunal has been followed in the case of M/s Lingaraj Biscuits Pvt Ltd., supra, M/s Badami Foods, supra, M/s Lucky Biscuit Company, supra, Venugopal Foods Pvt Ltd., supra, Parle Biscuits, supra, M/s Patwari Bakers Pvt Ltd., supra. 24. This Bench also in the case of M/s Badami Foods, supra, has held as under: "7. The demand of duty is on the sugar syrup which is manufactured and captively consumed by the appellants. It is the case of the department that the sugar syrup is marketable product and merits classification under 1702 9090 of CETA, 1985. However, on going through the said Chapter heading the sugar syrup ought to contain at least 50% by way of fructose. In the present case, though the department alleges that sugar syrup is classifiable under 1702 9090 there is no evidence adduced by the department as to what is the fructose content in the said syrup. In Rishi Bakers Pvt Ltd., (supra) on similar set of facts the contention of the department that sugar syrup falls under he....