Home Case Index All Cases Central Excise Central Excise + HC Central Excise - 2012 (6) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2012 (6) TMI 785 - HC - Central ExciseExcisability of the intermediate chemical - clandestine removal - D2 Aminobutanol Tartrate falling under Chapter S.H. 2942.00 of the Central Excise Tariff Act, 1985 - it is alleged that the product is illicitly manufactured and removed for captive consumption for manufacture of Ethambutol HCL of Chapter S.H. 2942.00 during the period from 23-7-1996 to 31-3-2001 - Held that: - for the Department to levy excise duty on the product in question, it would have to establish that the product itself is marketable. It is equally settled that while doing so, the chemical being stable would not be conclusive, but only one of the aspects. In case of Cadila Laboratories Pvt. Ltd. [2003 (2) TMI 65 - SUPREME COURT OF INDIA], the Supreme Court while accepting that this new product may be stable, refused to uphold the Department’s stand that it is marketable without any other evidence on record. Insofar as the opinion of the chemical examiner that the product is stable, that by itself as held by the Apex Court in the case of Cadila Laboratories Pvt. Ltd., would not be conclusive. What is required to be ascertained was whether such product is marketable. In other words, the product was known in the market and that it was possible to be bought and sold in the market. Mere hypothetical possibility of some availability in the market by itself would not be sufficient. The Department’s stand, therefore, that merely because chemically the product is found to be stable, in our view, cannot be stated to be new or sufficient material to enable the Department to hold the view that such product is marketable. Petition allowed - decided in favor of petitioner.
|