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TMI Blog2019 (7) TMI 248X X X X Extracts X X X X X X X X Extracts X X X X ..... cision, the Tribunal held that marketability of the product has been perceived by the department on the basis of marketability of invert sugar syrup. Since the department has not conducted any chemical test to arrive at the percentage of fructose content in the syrup, the contention that it merits classification under heading 1702 9090 or that it is marketable product cannot be accepted. In the present case, the department having not conducted any tests to prove the fructose content of the sugar syrup, the above decision would apply to hold that the sugar syrup manufactured by appellants is not a marketable commodity. Appeal allowed - decided in favor of appellant. - E/30668/2016 - A/30574/2019 - Dated:- 17-6-2019 - MS. SULEKHA BEEVI C.S, MEMBER (JUDICIAL) AND MR. P. VENKATA SUBBA RAO, MEMBER (TECHNICAL) Appearance Present for the Appellant: Shri G. Prahlad, Advocate Present for the Respondent: Shri P. Sudhakar Reddy, Authorized Representative [Order per: SULEKHA BEEVI C.S.] 1. This appeal is filed by the appellant against Order-in-Original No. HYD-EX-CUS- 002-COM-06-15-16 dated 29.03.2016. 2. The brief fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame stands the risk of being fermented if left for a long time. He, thus, argued that sugar syrup which is intermediary product is not marketable and the demand of excise duty cannot sustain. Further, the department has not adduced any reliable evidence to establish that sugar syrup is marketable. He relied upon the decision in the case of Rishi Bakers Pvt Ltd as reported at 2015 (328) ELT 634 (Tri-Delhi) to argue that sugar syrup is not a marketable product and also that it is for the burden of the department to establish the marketability. The department has not adduced any evidence to show that fructose content in the sugar syrup exceeds 50% to classify the product under 1702 9090. The following decisions were relied upon by the learned counsel to support his arguments. a) Lucky Biscuits Company Vs CCE, Patna 2017 (7) TMI 235 CESTAT Kolkata b) Parle Biscuits Pvt Ltd Vs CCE, Awar 2018 (1) TMI 465 c) Bhagwati Foods Pvt Ltd Vs CCE, Kanpur 2016 (9) TMI 678 3.1. The decision in M /s Yakult Danond India Pvt Ltd as reported at 2017 (8) TMI 1044 CESTAT-Chandigarh was relied upon by the learned counsel to submit that in the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary product. It was also argued that the issue being interpretational one and there being no positive evidence to establish any suppression of facts on the part of the appellant, the penalties may be waived. 4. Learned AR Shri P. Sudhakar Reddy appeared and argued the matter on behalf of the department. He adverted our attention to the notification 67/1995-CE and submitted that the notification stipulates that the exemption contained therein for captively consumed goods will not apply to inputs used in relation to manufacture of final products which are exempted from the duty of excise. Admittedly sugar syrup was used in manufacture of exempted biscuits. The sugar syrup manufactured by the appellant and captively consumed would fall under heading 1702 of Central Excise Tariff Act (CETA), 1985 which reads as under: 1702: other sugars, including chemically pure lactose, maltose, glucose and fructose in any form and preparations thereof; sugar syrups not containing added flavouring or colouring matter; artificial honey, whether or not mixed with natural hone; caramel 5. The sugar syrup/solution produced by the appellant finds place in the Schedule to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ructose content in the syrup, the contention that it merits classification under heading 1702 9090 or that it is marketable product cannot be accepted. The relevant portion of the decision is reproduced 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 contain 50% by weight of fructose sugar in dry state. In these cases, the appellant s plea from the very beginning has been that the fructose sugar content is less than 50% and in this regard they have produced the test report of Shriram Institute of Industrial 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing sold to M/s. Britannia Industries, M/s. J.B. Mangaram Food Industries and M/s. ITC Ltd. In our view this basis of holding that the goods, in question, are marketable is absolutely wrong, as it has been presumed that the sugar syrup being made by the appellants is identical to the invert sugar syrup being made by M/s. Dhampur Speciality Sugars Ltd. for which there is no basis. Chemically, invert sugar is obtained by Hydrolysis of cane sugar (sucrose, a disaccharide with specific rotation of + 66.5 ) and the same is a mixture of glucose (with specific rotation of +52.7 ) and fructose (with specific rotation of - 92 ), with net specific rotation of - 19.7 . The process of hydrolysis of cane sugar (which is dextrorotatory i.e. with rotation of + 66.5 ) is also called inversion, as the mixture of glucose and fructose formed by this process is levorotatory with sp. Rotation of - 19.7 and for this reason the mixture of glucose and fructose 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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