2018 (5) TMI 664 - AT - Central Excise

Manufacture / marketability of intermediate product - Cream - cream is prepared to be used in making of cream biscuits - It appeared to Revenue that the cream was classifiable under Tariff Item No. 2106.90 - Held that - Coordinate Bench in the case of Rishi Bakers Pvt. Ltd., Kanpur 2015 (4) TMI 893 - CESTAT NEW DELHI has held inte-alia, that, there was no evidence to prove that the sugar syrup in question, in the form in which it comes into existence in the appellants factory, is marketable. The cream which is produced captively is having unique flavour, colour and taste and the cream biscuits manufactured by different manufacturers have different flavours and taste. The Department has not been able to bring any evidence of marketability of creams so manufactured by the appellant. Appeal allowed - decided in favor of appellant.

Summary

Issues:
- Classification of cream under Tariff Item No. 2106.90
- Duty liability on cream captively consumed in the manufacture of biscuits
- Marketability of the cream produced in the factory

Classification of Cream:
The appeals revolved around the classification of cream used in the manufacturing of biscuits under Tariff Item No. 2106.90. The Revenue contended that the cream fell under this classification, leading to a demand for duty payment. However, the appellants argued that the cream was solely for captive consumption and not marketable. The Tribunal analyzed previous orders and established that the cream's unique characteristics, flavor, and taste, specific to each manufacturer, rendered it non-marketable. The Tribunal referred to the Supreme Court's test that a product manufactured and consumed in-house must be available in the market to attract duty liability. Consequently, the Tribunal ruled in favor of the appellants, holding that the cream produced and consumed internally was not marketable, thus setting aside the impugned orders.

Duty Liability on Cream:
The central issue involved the duty liability on cream captively consumed in the production of duty-exempted biscuits. Show cause notices were issued demanding excise duty on the cream used in manufacturing biscuits exempted from duty. The Commissioner (Appeals) upheld the demands, citing the cream's capability of being marketed and its shelf life based on market enquiries. However, the appellants argued that the cream, once processed for biscuits, had specific characteristics tailored for a particular biscuit and was not generally marketable. The Tribunal examined the evidence and precedent, ultimately ruling in favor of the appellants due to the lack of proof regarding the marketability of the cream produced and consumed internally.

Marketability of Cream:
The crux of the matter was the marketability of the cream produced in the factory for internal consumption. The Tribunal scrutinized the unique attributes of the cream, such as flavor, color, and taste, which varied among manufacturers, making it distinct and non-marketable in a general commercial sense. Relying on legal precedents and the Supreme Court's directive regarding captive consumption products, the Tribunal concluded that the cream in question was not marketable. This finding led to the allowance of all appeals with consequential relief, as the impugned orders were set aside based on the lack of evidence supporting the cream's marketability.