TMI Blog2014 (12) TMI 696X X X X Extracts X X X X X X X X Extracts X X X X ..... onfined to examination of marketability aspect alone. It is an accepted fact that the final product namely, Spring Brake Actuation equipment is cleared without payment of duty under Notification No.239/86 and 64/95. In the manufacture of the above said final product, the aluminium castings are used. These castings are manufactured in the factory premises itself and captively consumed. For such captive consumption, Notification No.217/86 and 67/95 have been availed by the respondent. This is not proper in my view as these two notifications are not applicable when the final product is exempted. Hence, there appears to be an error apparent on the face of the record and the Original Authority is required to consider this issue, which has been r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and circumstances of the case, the Tribunal is right in law in holding that the respondents are entitled to claim exemption of duty on aluminium castings that are intermediate products under Notification no.217/86-CE and 67/95 CE despite the fact that the final product was cleared without payment of duty? 5. Whether on the facts and circumstances of the case, the tribunal ought not to have held that the essential ingredients of the Notification No.217/86 CE and 67/95-CE were not satisfied? 2. Even though notice has been served on the first respondent and the name of the first respondent is printed in the cause list, none appears for the first respondent. Hence, after hearing the learned Standing Counsel appearing for the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manded duty on the aluminium castings on the ground that the benefit of Notification No.67/95-CE was not admissible to the said commodity as the final products had been exempted from payment of duty under the relevant notifications. 4. The first respondent contested this demand by submitting that the castings were not marketable and hence not dutiable. The first respondent relied on the terms and conditions of the agreement between them and the vehicle factory of the Defence Ministry. It was pointed out that under the agreement, the first respondent was prevented from selling or marketing the castings or passing on any information about the same to any other persons for strategic reasons as indicated by the Defence Ministry. 5. The Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Defence Ministry, the first respondent was prevented from selling or marketing the castings or passing on any information about the same to any other persons. Hence, the finding of the Original Authority as well as the Tribunal that aluminium castings in question were not marketable is justified. Accordingly, we find that substantial question of law Nos.1 to 3 are pure questions of fact and hence, the same are answered against the Revenue and in favour of the first respondent/assessee. 8. With regard to the fourth and fifth substantial question of laws are concerned, we find that the Commissioner (Appeals) has rendered a finding in paragraph Nos. 7, 8, and 9, which reads as follows: From the records, I observe that the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thin the factory of production- In exercise of the powers conferred by sub-section (1) of section 5A of the Central Excises and Salt Act, 1944 (1 of 1944), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts - (i)..... (ii) goods specified in column (2) of the Table hereto annexed (hereinafter referred to as 'inputs') manufactured in a factory and used within the factory of production in or in relation to the manufacture of final products specified in column (3) of the said Table; from the whole of the duty of excise leviable thereon which is specified in the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986); Provided that nothing contained in this notificat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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