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TMI Blog1989 (12) TMI 201X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 4,818.12 on 9850 litres of sugar syrup said to have been clandestinely consumed captively during the period from 1-10-1987 to 31-10-1987 under Rule 9(2) of CE Rules read with Section 11A of the Central Excises Salt Act, 1944 (hereinafter referred to as Act). He has, further demanded a sum of Rs. 85,212.60 on 167040 litres of sugar syrup valued at Rs. 7,10,105.00 manufactured and said to have been clandestinely consumed during the period from 1-11-1987 to 30-4-1988 under Rule 9(2) of the C.E. Rules read with Section 11A of the Act. He also imposed a penalty of Rs. 10,000/- under Rule 173Q(1) of the C.E. Rules 1944. The facts of the case are that on 10-11-1988, the Department issued a show cause notice, inter alia, demanding a sum of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... showing the production of sugar syrup for captive consumption. They denied having suppressed the facts of production of sugar syrup and also having clandestinely consumed sugar syrup in the manufacture of aerated waters in their factory without following the Central Excise procedures with an intention to evade payment of duty. They also submitted that the show cause notice was time-barred. In their additional reply to the show cause notice, they submitted that their company manufactures Double Cola, Ski Lemone and Ski Oranjoy. In the case of Ski Lemone and Ski Oranjoy, the flavour is done at the commencement of the process and at no point of time during the manufacture their goods resemble or can be classified as unflavoured sugar syrup. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention that the adjournment sought by them is beyond their reasonable control. The ld. Collector, has further, observed that I do not want justice to be delayed any further. I, therefore, proceed to adjudicate the case ex-parte on the basis of replies submitted by them and records available in the instant case. The appellants have submitted that it is a settled law that every motion for adjournment should be considered on its own merits and previous grant of time cannot be relevant for refusing the same. The appellants sought for setting aside the order on this ground also. 2. We find from the order-in-original that the ld. Collector has come to the conclusion that the sugar syrup is captively used in the manufacture of aerated water an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ector. It is their case that the sugar syrup is not a marketable commodity. It does not have shelf life and the department has proceed to pass the order without permitting the appellants to put forth all the technical literature on this point. The Department has also failed to take sample and carry out the test to support their view that it is a marketable commodity. It is their case that at no point of time during their manufacture do goods come into existence which can be classified as unflavoured sugar syrup. They have contended that the burden of proving that particular goods were excisable being upon the Department and they have failed to discharge the same. It is their case that sugar is purchased by them from the market and the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeded to close the proceedings ex-parte without informing to the appellants that such an action is being taken against them. They are quite justified in making the grievance that on each date of hearing the request has to be independently considered. In a case like this, it required to put forth technical literature and various other documents for consideration and they were justified in seeking an adjournment. Had the learned Collector informed them on 10-3-1989 that the adjourned date i.e. 27-3-1989 is a final date of hearing and that on that date if the party fails to produce any evidence, then in that event, the Collector would have been justified in proceeding with the case ex-parte. We do not find any such noting having been made on 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er is remanded they will be able to put forth their cases on merits on the basis of literature produced by them here in the Tribunal. Shri Chakraborty on the other hand, submitted that the circular cannot be relied upon by them as it does not have any force of law. He has put forth before us technical literature to show that the sugar solution coming in the intermediate stage is an excisable, marketable commodity and it is a solution having shelf life also. He also submitted it can be rightly classified under Tariff item 1702.30. He has also relied upon several citations. 6. While appreciating the efforts of both sides in placing several technical literature on this aspect, we are constrained to hold that in this particular case as the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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