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2011 (11) TMI 255 - AT - Central ExciseManufacture of Ion Exchange Resins – whether the copolymer beads cleared by the appellants to their sister unit for further processing are marketable or not - allegations of suppression against the appellant - cancellation of certificate issued under Rule 57E of Central Excise Rules – assessee contended about non-marketability of intermediate stage beads captively consumed by them – period involved May 1995 to March 1997 - Held that:- It is proved on record that copolymer beads have been imported by M/s. Doshion Veolia Water Solutions Pvt. Ltd. in 2010 and Bills of Entry are placed on record. Therefore, relying on the decision of Nestle India Ltd (2011 -TMI - 208471 - CESTAT, NEW DELHI) wherein it was held "it was not necessary that identical product should be marketable. Even if similar product is proved to be marketable, the test of marketability is satisfied." it is held that copolymer beads are marketable. Evidence of marketability of the product was produced by way of Bills of Entry only in 2010. Therefore, the issue of marketability of impugned product was not decided at that time thus it is held that extended period of limitation is not invokable. When demands are not sustainable, demanding interest and imposing penalty are also not sustainable. Rule 57(E)(3) was introduced to deny the Modvat Credit if the differential duty payable by the manufacturer was due to fraud, suppression, mis-statement etc only with effect from 01.03.97. The said rule does not have retrospective operation. Hence, for goods cleared prior to March, 1997, the said rule 57(E)(3) cannot be applied. See CCE V/s T I Metal Sections (2003 - TMI - 52365 - CESTAT, South Zonal Bench, Chennai). - Decided partly in favor of assessee.
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