2005 (10) TMI 318 - AT - Central Excise

Demand state excise duties - Manufacturer Of Sugar Syrup based products such as Neogadine, Neogadine (SG) etc - Dutiability - Limitation - Extended period - HELD THAT - It is seem from the Commissioner s order that he set aside the demand for December 1992 to May 1997 on the ground that it is barred by limitation applying the ratio of the Supreme Court s ruling in the case of Padmini Products 1989 (8) TMI 80 - SUPREME COURT . In this case the Supreme Court held that mere inaction on the part an assessee cannot be construed as willful suppression. We observe that the Tribunal in the case of Duke Sons Pvt. Ltd. v. CCE, 2004 (3) TMI 294 - CESTAT, MUMBAI referred to CBEC Circulars issued in 1989, 1994 1996 on the subject of excisability/marketability of sugar syrup and held that when the issue was bogged down in controversy, suppression of facts with an intent to evade duty cannot be alleged against the assessees. The period in dispute coincides with the years in which the said circulars were issued. We, therefore, uphold the Commissioner s order that the demand for the period December 1992 to May 1997 is barred by limitation. The impugned product, in our view is not a product, which is marketable and therefore we hold it to be not excisable. The syrup that came into existence at the intermediate stage appears to have other ingredients which effectively take it out of the product from known as sugar syrups for the purpose of levy of duty under CETA, 1985. Revenue s appeal is rejected both on limitation and on merits.

Summary

Issues:
1. Classification of sugar syrup as excisable product under Chapter Heading No. 1702.30 of CETA, 1985.
2. Applicability of penalty under Section 11A and extended period of limitation.
3. Marketability of the product for levy of duty.
4. Interpretation of the term 'sugar syrup not containing added flavouring or colouring matter' under Chapter Heading 1702.30.

Analysis:
1. The case involved a dispute regarding the classification of sugar syrup as an excisable product under Chapter Heading No. 1702.30 of CETA, 1985. The Department alleged that the sugar syrup manufactured by the Respondents was excisable and duty was payable on it. The Commissioner observed that the product in question contained additional ingredients besides sugar and water, making it distinct from the definition of 'sugar syrup.' The Commissioner also noted that the product lacked marketability and shelf life, further supporting the decision that it did not fall under the excisable category.

2. The Respondents contended that the sugar syrup was a by-product of their manufacturing process and not a commercially viable product. They argued that the extended period of limitation should not be invoked as there was no intention to evade duty. The Commissioner agreed with the Respondents, citing the Supreme Court's decision in Padmini Products, emphasizing that mere inaction does not constitute willful suppression of facts to evade duty.

3. The Revenue challenged the Commissioner's decision, arguing that the product was marketable based on the opinion of a Chemical Examiner and the existence of similar products in the market. However, the Tribunal upheld the Commissioner's ruling, stating that the product's lack of marketability and the presence of additional ingredients beyond sugar and water excluded it from the category of excisable goods.

4. The Tribunal referenced previous decisions to support its conclusion that the product did not meet the criteria for classification as 'sugar syrup not containing added flavouring or colouring matter' under Chapter Heading 1702.30. The Tribunal held that the product's composition with other ingredients made it non-marketable and, therefore, not subject to duty under CETA, 1985.

In conclusion, the Tribunal rejected the Revenue's appeal on both limitation and merits, affirming that the sugar syrup in question was not excisable due to its composition, lack of marketability, and failure to meet the criteria specified under Chapter Heading 1702.30 of CETA, 1985.