Custom, Excise & Service Tax Tribunal
M/S Rama Krishna Bakers Pvt. Ltd. (In ... vs Commissioner Of Central Excise, Kanpur on 18 January, 2018
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL REGIONAL BENCH : ALLAHABAD COURT No. I APPEAL No. E/2834-2835/2009 & E/865-866/2010-EX[DB] Sr No. Appeal No. OIO & OIA No. 1-2 E/2834-2835/2009 160-161-CE/APPL/KNP/2009 dated 15.07.2009 passed Commissioner of Customs & Central Excise (Appeals), Kanpur 3-4 E/865-866/2010 03-04/Commr./C.Ex./2010 dated 04.02.2010 Passed by Commissioner of Central Excise, Kanpur M/s Rama Krishna Bakers Pvt. Ltd. (In Appeal No. E/2834/2009), Rajeev Talreja (In Appeal No. E/2835/2009), Annakut Biscuit Co. Pvt. Ltd. (In Appeal No. E/865/2010) & Naveen Khanna (In Appeal No. E/866/2010) Appellant Vs. Commissioner of Central Excise, Kanpur Respondent
Appearance:
Shri H. P. Kanade, Advocate, for Appellant Shri Mohd. Altaf, Advocate, Assistant Commissioner (AR), for Respondent CORAM: Honble Mr. Ashok Jindal, Member (Judicial) Honble Mr. Anil G. Shakkarwar, Member (Technical) Date of Hearing & Date of Decision : 18/01/2018 FINAL ORDER NO. 70262-70265/2018 Per: Ashok Jindal
The appellants are in appeal against the impugned orders wherein cream produced by the appellants which has been captively consumed in manufacturing of biscuits was held dutiable by the authorities below.
2. As the issue involved in all the appeals is common, therefore, all the appeals put together for disposal by way of a common order.
3. The brief facts of the case are that the appellants are engaged in the manufacture of biscuits on job work basis on behalf of M/s Parle Biscuits Pvt. Ltd. The case of the Revenue is that for manufacture of biscuits the appellants are also producing flavoured cream/elaichi cream which has been captively consumed in the manufacture of biscuits on job work basis on behalf of M/s Parle Biscuits Pvt. Ltd. As the appellant being job worker, they are not entitled to get benefit to SSI Exemption under Notification No. 67/95-CE dated 16.03.1995, therefore they are liable to pay duty on flavoured cream/elaichi cream which is an intermediate product used for of manufacture of biscuits which is exempt from payment of duty. The goods i.e. flavoured cream/elaichi cream was produced by them is not marketable, therefore, they are not entitled to pay duty on the cream in question. The Revenue did not counter this evidence and also did not produce any evidence to the effect of marketability of this product.
4. We find that the similar issue came up before this Tribunal in the case of M/s Ajmer Food Products Pvt. Ltd. Versus CCE, Jaipur wherein vide Final Order No. 52429/2015 dated 30.07.2015, this Tribunal observed as under:
Considering the above discussion, we are of the view that to charge excise levy on the cream captively consumed it is necessary to support the contention of the marketability of the product with evidence which may include the details of shelf-life, general availability of market for such product, market inquiry etc. As there is no detailed discussion in the proceedings of the lower authorities, we remand the matter back to the original authority for detail examination of these issues and to pass fresh orders. The appellant shall be given liberty to defend their case. The appeal disposed of by way of remand.
5. We observed that in these cases marketability has not been examined by the authorities below whether the cream produced by the appellant is marketable in question. Therefore, the impugned orders are set aside. The matters remanded back to the Adjudicating Authority to examine the issue as discussed above in the light of the case of M/s Ajmer Food Products Pvt. Ltd. Versus CCE, Jaipur (supra) and thereafter to pass appropriate order in accordance with law. Needless to say that the appellant would be given an opportunity to putforth their case.
6. Accordingly, the appeals are disposed of by way of remand.
(Dictated in Court) Sd/- Sd/- (Anil G. Shakkarwar) Member (Technical) (Ashok Jindal) Member (Judicial) Ansari 1 3 Ex. Appeal No. 2834-2835/09 & 865-866/10-DB