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TMI Blog2016 (9) TMI 678X X X X Extracts X X X X X X X X Extracts X X X X ..... ORDER These nine appeals have been filed by Bhagwati Foods Pvt. Ltd. Sl. No. Appeal No. OIO No. Period Involved Amount Confirmed U/s 11A Penalty U/s 11 AC r/w Rule 25 Penalty U/Rule 26 1. 38-C.EX/ACK-II/13 Dt. 30.04.2013 1.4.2009 to 31.10.2009 376938 2. 39-C.EX/ACK-II/13 Dt. 30.04.2013 April, 2008 to Sep. 2008 459579 3. 40-C.EX/ACK-II/13 Dt. 30.04.2013 March 2008 to Nov. 2008 8396 8396 0 4. 41-C.EX/ACK-II/13 Dt. 30.04.2013 Oct. 2008 to March 2009 480308 5. 51-C.EX/ACK-II/13 Dt. 06.6.2013 3 May, 2007 to 27 Feb., 2008 34345 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2007 and therefore, the Notification No. 67/95-CE becomes inapplicable on their intermediate product i.e. Sugar Syrup. 5. The appellant was asked by revenue dated 29.08.2008 and another letter dated 21.11.2008 to submit the manufacturing process of their final products and all ingredients and also the production and clearance value of Sugar Syrup. In reply, the appellant vide their letter dated 04.12.2008 and 12.12.2008 submitted the list of raw material/ingredients and flow chart of manufacturing process. 6. To verify the facts, the officers of range visited on 27.03.2009 the factory premises and studied the manufacturing process involved in the factory and found that the Sugar Syrup (Sugar solution) is being manufactured. In this regard a panchnama dated 27.03.2009 was also drawn on the spot in the presence of Shri Sudhir Kumar Gupta, Authorized Signatory of the appellant and Shri Vipul Singh Chauhan, Production Incharge of the unit. 7. A statement dated 22.01.10 of Shri Vipul Singh Chauhan, Production in charge of the unit under Section 14 of the Central Excise Act, 1944 was recorded wherein he interalia stated that: (i) The unit is engaged in the manufacturing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice and stated that they are engaged in the manufacture of biscuits and the process of manufacture involves preparation of sugar syrup. The syrup is captively consumed and used in the integrated process of manufacture and is not packed and removed from the production process line. At no point of time they had ever sold nor even intended to sell the sugar syrup. The sugar syrup by itself is not complete and finished product, so that it can be subject to duty of excise. It is settled law by the Hon ble Supreme Court that merely because an item is specified in the Central Excise Tariff, it cannot be held that the product attracts excise duty unless it is shown that it is actually being marketed or is being bought and sold in the market, or capable of being marketed. 11. The appellant further added that it is settled law by the Hon ble Supreme Court in CCE Vs. MARKFED VANASPATI ALLIED INDUS. - 2002-153-ELT-491 (SC) wherein it has been held that onus of proving marketability of the products is on the revenue and merely because an item is attracted to a tariff entry it cannot be taken that there was manufacture of excisable goods unless its marketability is also estab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otification cannot lead to inference of dutiability of goods for prior period. (4) Different legal stand can be taken by assessee if he was working under an error of law. (5) Reliance on an order of another Commissioner (Appeals), not to be applied blindly. (6) Marketability test as per Supreme Court s ruling not established by the department. (7) HSN interpretation notes not relevant as entry in the excise tariff, not pari material with HSN. (8) SSI exemption not considered (9) Levy of penalty under Rule 27 is unjustified 15. Heard the parties, I find that the issue in this appeal is squarely covered by the earlier order of Division Bench of this Tribunal, Final Order No.50759-50764/2015 dated 03.3.2015 where in under similar circumstances this Tribunal is held as follows:- 7. The dispute in the present case is as to whether sugar syrup made by the appellant for captive use in the manufacture of exempted biscuits is chargeable to Central Excise duty under sub-heading 17029090 of the Central Excise Tariff. The Departments contention is that since the sugar syrup is used in the manufacture of the exempted biscuits, the benefit of Notification No. 67/95-CE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial Research. It is seen that the Commissioner (Appeals) has not given any finding on this plea. Not only this, there is no evidence to show that before seeking classification of the goods, in question, under sub-heading 17029090, the samples drawn from the goods had been got tested by the CRCL to confirm as to whether the fructose content of the goods, in question, in dry stage is 50% by weight. Just because the appellant during period till June 2008 were paying duty on the goods by classifying the same under sub-heading 17029090, it cannot be presumed that they had accepted that the goods, in question, conform to the description of sugar syrup blends of sub-heading 170290 for which the sugar syrup in dry stage must contain 50% by weight of fructose. The Apex court in the case of Metlex (I) Pvt. Ltd. vs. CCE, New Delhi reported in 2004 (165) E.L.T. 129 (S.C.) has held that filing of classification list mistakenly does not mean that 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is ordinary cane sugar syrup or is invert sugar syrup has to be ascertained by chemical test which has not been done. It is, therefore, totally wrong to presume a given sugar syrup as invert sugar syrup without test. The judgments of the Apex court in the cases of Gujarat Nermada Valley Fert. Co. Ltd. vs. CCE CUS (supra), Nicholaas Piramal India Ltd. vs. CCE, Mumbai (supra) and Medley Pharmaceuticals Ltd. vs. CCE CUS, Daman (supra) cited by the learned DR are not applicable to the facts of this case. 10. In view of the above discussion, we hold that neither there is any evidence to prove that the goods, in question, are classifiable under 17029090 nor there is any evidence to prove that the goods, in question, in form in which they come into existence in the appellants factories, are marketable. We, therefore, hold that the impugned order is not sustainable. The same is set aside. The appeals are allowed with consequential relief. 16. Accordingly we find that the facts in this case are squarely covered by the aforementioned order of the Tribunal in M/s Rishi Bakers Pvt. Ltd, Kanpur and others. 17. Accordingly we allow the appeal and set aside the impugned order. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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