2003 (11) TMI 457 - AT - Central Excise

Summary

Issues:
1. Appeal against impugned orders passed by Commissioner (Appeals) and Assistant Commissioner.
2. Marketability of potassium chlorate in crystal form.
3. Burden of proof on the Revenue regarding marketability.
4. Justification of dropping the proceedings by both authorities.

Analysis:
1. The Revenue appealed against orders passed by the Commissioner (Appeals) and Assistant Commissioner dropping proceedings. The Commissioner (Appeals) found merit in the respondents' plea that potassium chlorate in crystal form is not marketable, supported by evidence from users in the form of affidavits. The burden of proving marketability lies with the Department, and without evidence to support marketability, the appeal was rejected, upholding the impugned order.

2. The contention revolves around the marketability of potassium chlorate in crystal form. Both authorities noted that potassium chlorate is usable in powder form, not crystal form, and the Revenue failed to provide evidence of marketability. Citing Apex Court decisions, the demands were set aside. The Revenue argued for the marketability of the item, but the authorities found no evidence supporting this claim.

3. The burden of proving marketability rests with the Revenue, as established in legal principles. The Department failed to discharge this burden by not presenting evidence of marketability of potassium chlorate in crystal form. The impugned order was deemed just, legal, and proper by the authorities, as the Department did not fulfill its obligation to demonstrate marketability.

4. The justification for dropping the proceedings lies in the lack of evidence regarding the marketability of potassium chlorate in crystal form. The impugned order, supported by legal principles and the absence of evidence from the Revenue, was upheld as valid and justified. After considering all aspects, the appeal was rejected, affirming the decision to drop the show cause notice proceedings due to insufficient proof of marketability.