R.SUDHAKAR,J. - (1.) This Civil Miscellaneous Appeal, filed by the Department challenging the Final Order No. 1212 of 2008, dated 22-10-2008 passed by the Customs, Excise and Service Tax Appellate Tribunal, South Regional Bench at Chennai [2009 (245) E.L.T. 707 (Tri.-Chen.)], was admitted by this Court on the following substantial questions of law : "1. Whether the first respondent is justified in vacating the demand of duty and penalty on the ground of limitation and allowed the appeal inasmuch as (a) the second respondent had not filed the necessary declaration under rule 173B ibid. (b) the second respondent had suppressed the fact of manufacture of sugar syrup with intention to evade payment of duty. (c) the invocation of the extended period under proviso to Section 11A of the Act ibid is valid and warranted.
(2.) Whether the order of the Tribunal is correct in finding that the levy of Central Excise Duty hit by limitation when the tribunal given finding that the sugar syrup is excisable one?
(3.) Whether the order of the Tribunal is correct in finding that the levy itself is barred by limitation when the assessee admittedly suppressed the manufacturing of sugar syrup?" 2. The second respondent/assessee is engaged in the manufacture of mango fruit pulp-based drinks, which they marketed under the brand name 'slice'. They also manufacture a variety of aerated waters, which are also cleared under different brand names. The issue that arose before the Tribunal was whether an intermediate product called 'sugar syrup' emerging in the course of manufacture of the slice-branded product is marketable and if so, whether the demand of duty raised on the assessee for the period May, 1995 to April 1997 was time-barred. 3. The case of the Department was that sugar syrup, which emerged in the course of manufacture of slice branded final product, during the period of dispute, was stable and has adequate shelf-life. Hence the same was marketable and accordingly, dutiable under SH 1702.30 of the First Schedule to the Central Excise Tariff Act. Hence, show cause notice was issued to the assessee demanding duty under Section 11A(1) of the Central Excise Act and penalty under Section 11AC of the Central Excise Act and Rule 173Q of the Central Excise Rules. In response to the said show cause notice, the assessee filed a reply denying the allegations in the show cause notice stating that sugar syrup has no shelf life and hence the same is not marketable.;