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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 ..... ts, being an intermediary product the appellants are liable to pay duty on the same and the exemption provided as per notification 67/1995-CE dated 16.03.1995 was not available to the appellants. During the period March, 2007 to 11.09.2011, it was noticed that appellants manufactured a quantity of 33,92,538 KGs of sugar syrup and consumed the same captively for manufacture of exempted biscuits and did not discharge duty on intermediary product. Show cause notice was issued proposing to demand Central Excise duty on this sugar syrup captively consumed for manufacture of exempted biscuits along with interest and also for imposing penalties. After due process of law, original authority confirmed the demand of Rs. 63,71,760/- along with interest and imposed equal penalty. Hence, this appeal. 3. On behalf of the appellant learned counsel, Shri G. Prahlad, appeared and argued the matter. He submitted that for manufacture of biscuits, sugar syrup is one of the ingredients. For preparation of sugar syrup 150 KGs of sugar is dissolved in 65 litres of water in a kettle with heating facility and heated upto 65 to 70o C to ensure that the sugar is completely dissolved. Subsequently, the tempe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For the disputed period from March, 2007 to March, 2010, the appellant has maintained separate set of accounts for the inputs used in dutiable and exempted products. For the period from April, 2010 the appellant had reversed the proportionate credit for all items used in exempted biscuits. He drew attention to letter dated 25.04.2010 written by the assessee to the department wherein intimation was given to the department with regard to the reversal made by them. It is also submitted that for the year 2010-11 the appellant has reversed credit of Rs. 59,61,753/- and for the year 2011-12 appellant reversed an amount of Rs. 95,31,999/-. He relied upon the decision in the case of Godavari Sugar Mills Ltd as reported at 2007 (212) ELT 234 Tri- Bangalore to argue that when the wrongly availed credit has been reversed, the benefit of notification 67/1995-CE cannot be denied. The decision in GD Bakers Industries Pvt Ltd as reported at 2014 (308) ELT 777 (Tri-Bang) was also relied. 3.3. With regard to the issue of limitation, learned counsel submitted that the question of marketability of sugar syrup has been under dispute for several years and there have been decisions in favour of the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f biscuits/ sweetened food preparations. Therefore, the said sugar syrup is marketable product. The Commissioner has correctly relied upon market survey taken from the website to conclude that the sugar syrup is marketable item. The website reveals that said product is usually known as 'invert sugar syrup' and is ideal for confectionary industry for making caramel and other toffee sweeteners. It is also used in bakery products, jams, cakes and puddings. Thus, invert sugar syrup would be capable of being traded in the market as a commodity. The appellants are therefore liable to pay excise duty as demanded in the show cause notice and as confirmed by the adjudicating authority. 6. Heard both sides. 7. The demand of duty is on the sugar syrup which is manufactured and captively consumed by the appellants. It is the case of the department that the sugar syrup is marketable product and merits classification under 1702 9090 of CETA, 1985. However, on going through the said Chapter heading the sugar syrup ought to contain at least 50% by way of fructose. In the present case, though the department alleges that sugar syrup is classifiable under 1702 9090 there is no evidence adduced by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i 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. v. CCE reported in 2012 (277) E.L.T. 145 (S.C.). In view of this, we hold that the classification of the goods under sub-heading 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 is whether product is marketable in conditio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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