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2016 (9) TMI 939 - AT - Central ExciseManufacture - marketability - Duty liability - goods got fabricated by the appellant from the job workers - appellants engaged in fabrication of gates and gate parts for irrigation project using M.S. Sheets, Plates, Angles etc. - items were made as per specifications of the project and are not regularly traded items - Held that:- the original authority presumed marketability on the basis that even a single buyer will constitute the market. We find in the present case the specified parts of irrigation gates which are ultimately installed into immovable structure are not bought and sold. These specific parts were fabricated as intermediate parts to create a final structure.It is found that the facts of the case are similar to the one decided by the Karnataka High Court which was affirmed by the Hon’ble Supreme Court. It is also noted that the Hon’ble Supreme Court in Board of Trustees vs. Collector of Central Excise, A.P. [2007 (8) TMI 350 - SUPREME COURT OF INDIA] held that in order to constitute goods twin tests have to be satisfied, namely, process constituting manufacture and secondly marketability. It is well-settled that goods are manufactured with the object of being sold in the market. If the goods are not capable of being sold then the test of marketability is not fulfilled. Further, the burden is on the Department to prove whether there is the process which constitutes manufacture and secondly whether the product is marketable. The Hon’ble Supreme Court concluded that the impugned goods in that case is made of particular specification and cannot be used anywhere else. There is no evidence coming from the department to show that said specified products are bought and sold in the market as a commodity. Accordingly, the impugned order is set-aside. - Decided in favour of appellant
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