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TMI Blog2024 (4) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... analysed the aspect of marketability of the product analysing the shelf life of the product and other factors as clarified in Board s Circular No.226/60/96-CX dated 03.07.1996 referred by the appellant. The appellant through their miscellaneous applications sought to add grounds about the liability for the period after 12/09/2011 submitting that the amending Notification No.39/2011-CE dated 12.09.2011 allowed exemption to sugar syrup consumed captively in the manufacture of biscuits in the factory. Admittedly, this plea was not taken before the authorities below. However, since it would go to affect the liability for the period after 12.09.2011, following the principles of law settled by the Hon ble Supreme Court in the cases of JUTE CORPORATION OF INDIA LIMITED VERSUS COMMISSIONER OF INCOME-TAX AND ANOTHER [ 1990 (9) TMI 6 - SUPREME COURT] and DEVANGERE COTTON MILLS LTD. VERSUS COMMISSIONER OF C. EX., BELGAUM [ 2006 (4) TMI 134 - SUPREME COURT] , the said grounds are allowed to be taken. Matter remanded to the adjudicating authority to examine the issue of marketability of the sugar syrup in the light of the Board s Circular No.226/60/96-CX dated 03.07.1996 and also the applicabil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that during the relevant period, they have been clearing final product viz. biscuits by availing benefit of exemption Notification No.3/2006-CE dated 01.03.2006 as amended by Notification No.22/2007-CE dated 22.05.2007. Referring to the Board s Circular No.226/60/96-CX dated 03.07.1996, he has submitted that; where Citric acid i.e. preservative is not added in the preparation of sugar solution, the solution does not have any shelf life and not marketable; the key determinant to hold whether sugar syrup possesses shelf life is the percentage of soluble solid content i.e. sugar in the syrup; the Chief Chemist in its report on which basis the Circular was issued opined that synthetic syrups may be prepared with or without addition of Citric acid, where soluble solid content is not less than 65% by weight in the syrup. Further, he has submitted that no conclusive evidence has been placed on record to show that the sugar syrup manufactured by the appellant having soluble solid content of not less than 65% by weight. He has further submitted that with a concentration of 65% by weight or more the solution will retard the growth of micro-organism and thus the syrup may have shel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsumed in the factory for the manufacture of biscuits is exempted from 12.09.2011. 3.3. Learned advocate for the appellant has submitted that two miscellaneous applications have been filed seeking to amend the grounds of appeals. It is stated that amendment to Notification No.10/1996-CE dated 23.07.1996 by amending Notification No.39/2011-CE dated 12.09.2011 allowed exemption to sugar syrup consumed captively in the manufacture of biscuits in the factory. It is their contention that the said grounds could not be taken before the authorities as well at the time of filing appeal. It is submitted that the said plea would substantially affect to determine the liability of the appellant in the appeals No.E/21410/2017 and E/21411/2017. In support, he has referred the following judgments: i. Jute Corporation of India Ltd. Vs. Commissioner of Income Tax [1991(51) ELT 176 (SC)] ii. Devangere Cotton Mills Ltd. Vs. CCE, Belgaum [2006(198) ELT 482 (SC)] iii. Asia Pacific Commodities Ltd. Vs. Asst. Commissioner of Customs, Kakinada-I [2012(280) ELT 481 (AP)] 3.4. Regarding the issue of extended period of limitation invoked in the show-cause notice dated 26.05.2012 and confirmed by the adjudica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cuits has no shelf life and not marketable. The question of determination of shelf life of sugar syrup by the appellant never arose as the same had not been taken out of production line of manufacture of biscuits. Further, to establish the marketability of sugar syrup rests with the Revenue and no evidence has been gathered by the Revenue to establish the said fact, hence the conclusion by the adjudicating authority and upheld by the learned Commissioner(Appeals) that the sugar syrup so generated during the process of manufacture of biscuits are marketable cannot be sustained. In support, they have mainly referred to the judgments of this Tribunal. We find that the issue of excisability of sugar syrup has come up before this Tribunal in a number of cases. This Tribunal in the case of Ambaji Foods (India) Pvt. Ltd. (supra) considering similar facts and circumstances involving the issue of levy of duty on sugar syrup emerged at the intermediate stage and used in the manufacture of biscuits availing the benefit of Notification No.22/2007-CE dated 03.05.2007, after analysing various case laws on the subject, held as under:- 11. Apparently the Adjudicating Authority has instead of decid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spute about the fact that it is the marketability of the product which is required to be examined and not the actual sale of the product. However, it is also equally true that the product being manufactured by a particular assessee is required to be examined vis-a-vis its marketability, depending upon the various factors like the stability of the product and constituents of the product and the shelf life of the product. It is not the name of the product which is important, but the actual constituents of the product which would be decisive factor for deciding the above issue. We, further note that there is no test report of the sugar syrup being manufactured by the appellant, conducted by the Revenue. It is the sugar syrup, which is being manufactured by the appellant which has to be examined in relation to its marketability. If the sugar syrup being manufactured by the appellant does not have a shelf life and does not satisfy the criteria as prescribed in Tariff Heading 1702.90, the same would not be classifiable under the said heading. Thereafter, following the judgment in Ambaji Foods (India) Pvt. Ltd. s case, the matter was remanded to the authorities to examine the marketabilit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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