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2013 (1) TMI 331 - HC - Central ExciseExcise duty on Blank CDs/DVDs - movable and marketable commodity - assessee availing the benefit of exemption under Notification No.6/2006-CE dated 01.03.2006 in respect of pre-recorded audio CDs/DVDs/VCDs - assessee never disclosed the fact of manufacturing blank CDs/DVDs at intermediate stage thus deliberately suppressing the vital fact from the Department - Held that:- Before a product can be classified as “goods”, it must be shown to be a complete product, having a commercial identity and capable of being sold to a consumer. And, all this must be established by the revenue as decided in Bata India Limited v. Commissioner of Central Excise, New Delhi [2010 (4) TMI 58 - SUPREME COURT] - the twin tests of manufacture and marketability would have to be satisfied. As in the present case the petitioner has categorically stated that it does not manufacture any blank CD/DVD. It has supported this contention by an expert opinion of M/s Truth Labs. There is nothing on the part of the revenue to show that the petitioner does, in fact, manufacture blank CDs/DVDs. It was incumbent upon the revenue to have discharged its burden of establishing that the petitioner, in fact, manufactures blank CDs and DVDs. Mere surmises and conjectures on the part of the revenue would not lead to the revenue discharging this burden. There must be some material on record on which the revenue can rest its opinion. On the contrary, in the show cause notice, it is admitted that the CDs/DVDs do not come into existence separately. The same position has been accepted in the adjudication order dated 24.09.2010. Thus the conclusion of the Commissioner in the adjudication order that the petitioner manufactures blank CDs/DVDs is merely based on his own ipse dixit and is not supported by any material on record as wrongly held that liquefied polycarbonate is injected to the cavity of the moulds that create component discswhich cool and solidify and the pressed discs, after cooling, are captively used for data transfer from the stamper. This is not borne out by the facts and the manufacturing process. The stamping and the moulding takes place simultaneously. It is not as if, first, a blank disc is created and then it is stamped. The process is simultaneous. While liquefied polycarbonate solidifies, it is imprinted with data by the stamper. Therefore, at no stage does a blank CD/DVD come into existence also concluded by flowchart of process of manufacture as submitted by assessee - The very first test of manufacture is not satisfied no excise duty can be demanded for blank CDs/DVDs - in favour of assessee. Legal position with regard to the exercise of writ jurisdiction in a matter such as this - Held that:- Existence of an alternative remedy does not constitute a bar against the exercise of jurisdiction under Article 226 and, in certain cases, it is open to the High Court to exercise that jurisdiction. In fact, in Calcutta Discount Company (1960 (11) TMI 8 - SUPREME COURT), the Constitution Bench has gone sofar as to state that when the Constitution confers on the High Court the power to give relief, it becomes the duty of the court to give such relief and that the existence of an alternative remedy is not always a sufficient reason for refusing a party quick relief by way of a writ. Not forgetting the circumstances in which the show cause notice was issued to the petitioner & the previous history of the petitioner having got two officers of the revenue arrested on charges of bribery this is a fit case for exercise of jurisdiction under Article 226 of the Constitution despite the fact that the petitioner has an alternative remedy.
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