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2015 (12) TMI 322 - AT - Central ExciseMarketability - Captive consumption - whether the goods namely rubberized tyre cord fabric and rubber tread compound manufactured and consumed captively are marketable and consequently dutiable or otherwise - Held that:- As regard rubberized tyre cord fabric, it is observed that demand was raised classifying the said product under Chapter heading 59.02 whereas it s correct classification is under Chapter heading 50.06, as held by Hon ble Supreme Court in the case of MRF Ltd (2008 (9) TMI 673 - CESTAT, BANGALORE) as well as in the appellant s own case of this Tribunal order [2013 (4) TMI 504 - CESTAT MUMBAI] therefore admittedly the demand was confirmed under wrong classification. - department has not produced any evidence to prove that goods in question are marketable. For this reason also the contention of the Revenue regarding marketability is not acceptable. As regard the product namely rubberized tread compound the department has failed to bring any evidence to prove that the subject goods manufactured and consumed captively by the respondent is marketable and therefore the burden of proving that goods is marketable has not been discharged by the Revenue. - under similar facts, in the case of Metro Tyres Ltd [2002 (11) TMI 384 - CEGAT, NEW DELHI] and Cipla Ltd.(2008 (3) TMI 330 - SUPREME COURT OF INDIA) this issue has been considered and was held that merely if movement of goods from one factory to another factory has taken place and the goods were used for captively the said reason can not be material factor to hold that the goods is marketable. - Decided against Revenue.
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