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TMI Blog2017 (11) TMI 471X X X X Extracts X X X X X X X X Extracts X X X X ..... - appeal allowed - decided in favor of appellant. - Excise Appeal No.52653 of 2015 - A/56814/2017-EX[DB] - Dated:- 27-9-2017 - Shri Dr. Satish Chandra, President And Shri B. Ravichandran, Member (Technical) Shri Jatin Mahajan, Advocate for the appellant. Shri M.R. Sharma, Authorized Representative (DR) for the Respondent. ORDER Per. (Dr.) Satish Chandra The present appeal is filed by the appellant against order-in-Original No.RPR/EXCUS/000/COM/016/EX/2015 dated 31/03/2015. 2. The brief facts of the case are that during the period of dispute from June 2008 to September 2011, the appellant was engaged in the manufacture of biscuits and used sugar syrup which was prepared within their factory. The appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so find that issue in this appeal is squarely covered by the judgment of the Tribunal in the case of Rishi Bakers Pvt. Ltd. (supra), wherein the Tribunal has held as under : 8. Next comes the question of classification. The Department has classified the product, in question, under sub-heading 1702 90 90. Sub-heading 1702 90 90 comes under the 6 digit sub-heading 1702 90 which covers other sugars including invert sugar and sugar syrup blends containing in the dry stage 50% by weight of fructose . The goods, in question, are sought to be classified under 1702 90 90 as sugar syrup blends containing in dry stage, 50% by weight of fructose . In our view for classification as sugar syrup blend in this sub-heading the product must conta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding 1702 90 90 is not sustainable, as absolutely no evidence has been produced by the Department to show that the fructose content of the goods, in question, in dry state was 50%. 9. Even if it is assumed that the goods, in question, are covered by sub-heading 1702 90 90, for attracting Central Excise duty the goods must be proved to be marketable. The Tribunal had remanded this matter to Commissioner (Appeals) for examining the question of marketability of the goods, in question. In this regard it is settled law that the marketability of a product has to be established in the condition in which it emerges. In this regard the Apex Court in the case of Bata India Ltd. v. CCE, New Delhi (supra) has held that the test of marketability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tose formed by hydrolysis of cane sugar is called invert sugar. The invert sugar has longer shelf life. Whether a sugar syrup 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 Narmada Valley Fert. Co. Ltd. v. CCE Cus. (supra), Nicholaas Piramal India Ltd. v. CCE, Mumbai (supra) and Medley Pharmaceuticals Ltd. v. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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