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2021 (10) TMI 1030 - HC - Central ExciseRejection of application for settlement of disputes under the Sabka Viswas (Legacy Dispute Resolution) Scheme, 2019 - excisable goods - supplies made as against international competitive bidding to power projects, under exemption - Department adopted the view that the commodity supplied, being lubricant, was only used as a coolant/lubricating agent and hence did not entitle the petitioner to the exemption sought - HELD THAT:- The incidence of duty must not be looked at a mechanical event but a constructive one, that contains all incidents of a taxable event. Thus, to attract levy of duty, a practical point of view must also be called into play to determine whether the goods are marketable or capable of being marketed. Though in that case the Court was concerned with whether the commodity in question was capable of being marketed as a distinct and marketable product, the observations made would apply to the present scenario as well, since in the present case, there is no rate of duty that is set out alongside ‘lubricants’ that may be applied to a transaction of manufacture and sale of the said lubricant. Thus, even though the product in this case is marketable, it does not answer to the question of ‘excisable goods’ as, practically there can be no levy of duty thereupon in the absence of a stipulated rate and applicable rate of duty. Thus, notwithstanding that the language of Section 125(h) of the SVLDRS Scheme uses the phrase ‘with respect to excisable goods set forth in the Fourth Schedule to the Central Excise Act, 1944’, the use of the word ‘excisable’ cannot be seen to be cosmetic, but must contain some purpose - Mere mention of the commodity without the rate of tax would serve no purpose as far as excisability is concerned. Neither the judgment of the Hon’ble Supreme Court in the case of MOTI LAMINATES PVT. LTD. VERSUS COLLECTOR OF CENTRAL EX., AHMEDABAD [1995 (2) TMI 67 - SUPREME COURT], the General Rules of interpretation to Schedule 4 of the Act nor the Clarification of the OSD have been brought to the notice of the Division Bench of the Allahabad High Court while considering the case of M/S INDIAN OIL CORPORATION LIMITED VERSUS UNION OF INDIA AND 2 OTHERS [2020 (12) TMI 316 - ALLAHABAD HIGH COURT] and for these reasons, this decision is distinguishable. Petition allowed.
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