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TMI Blog2000 (8) TMI 402X X X X Extracts X X X X X X X X Extracts X X X X ..... to Central Excise Duty, being classifiable under sub-heading 2102.90 of the Schedule to the Central Excise Tariff Act. 2. Shri R.S. Sangia, ld. D.R., submitted that the Assistant Commissioner has given the process of manufacture of the yeast by the respondents; that for example M/s. Ranger Breweries Ltd. (Appeal No. E/3078/99-D), purchased fresh dried yeast from the open market in the form of Yellow powder; two kgs. of the yeast powder was put into a tank of diluted molasses and the mixture was kept for about 6 to 7 hours; the dried yeast thus got activated and it multiplied and through this process more yeast was propogated/generated in the mixture, known as BUB; the BUB was transferred into a big tank known as fermental potable spiri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s per page 156-157 of Explanatory Notes to Harmonised Commodity Description and Coding System. Coming to inactive yeast, it is siated, Inactive yeast obtained by drying, are generally brewery, distillerly or baker s yeasts which have become insufficiently active for further use in those industries. They are used for human consumption (source of vitamin B) or for feeding animals. It should, however, be noted that owing to their growing importance; these dried yeasts are to an increasing extent being produced directly from specially prepared active yeasts. 4. Shri K.L. Rekhi, ld. Advocate for M/s. Mohan Meakin Ltd., submitted that the Respondents are consumer of imported duty paid yeast and not its manufacturer; that in the course of cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 2(f) of the Central Excise Act and reliance was placed on the decision in U.O.I. v. Delhi Cloth General Mills Co. Ltd., 1977 (1) E.L.T. (J 199) and CCE v. Jayant Oil Mills Pvt. Ltd., 1989 (40) E.L.T. 287 (S.C.). He also submitted that the Assistant Commissioner has himself given a finding in the Adjudication Order No. 35/CE/DC(T) CHG/98, dated 5-8-1998 that culture yeast processed into usable yeast (or Brewery Yeast) has shelf life of only 6 to 8 hours; that this would hardly make it packable, transportable and marketable in normal market condition; that the unusual circumstances in which a small quantity of usable yeast contained in make shift jerrycans is rushed twice or thrice a year from their Solan unit to nearby Kasouli Brew ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Vats otherwise cells would die and the mixture will be a trash only. The ld. Consultant also mentioned that the Revenue has not controverted the findings of the Commissioner in the impugned Order dated 13-9-1999 that the yeast in question is different from the Yeast of said M/s. Kothari Fermentation Bio-Chem. Ltd. The ld. Consultant emphasised that marketability of the product is essential before Central Excise duty can be levied on any goods; that Explanatory Notes of H.S.N. themselves identify the varieties of yeasts which are marketable, such as Baker's Yeast, seed yeast; that the yeast propagated by them is not marketable as it has no shelf life. 6. Shri G.S. Bhangoo, ld. Advocate appearing on behalf of all other Respondents, als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndings on this aspect of marketability in very clear terms as under : The impugned item, yeast is having a very short shelf life, which does not extend beyond few hours. The goods cannot be charged Central Excise duty unless their marketability is proved. In a catena of judgments, the Hon'ble Supreme Court has held that products not capable of being sold to the consumer are not goods for the purpose of levy of excise duty. The full Bench of the Hon'ble Supreme Court in the case of U.O.I. v. Delhi Cloth Cotton Mills, reported as 1977 (1) E.L.T. (J 199) (SC), held that only those goods which can come to the market to be bought and sold are excisable goods. There had been some instance where the intermediate goods were not marketable but ..... X X X X Extracts X X X X X X X X Extracts X X X X
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