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2005 (1) TMI 111 - SC - Central ExciseWhether the intermediate product manufactured by Camlin Limited is marketable? If it is marketable then whether the product is to be classified under Chapter Heading 32.04 or 96.09? Held that:- Unable to accept the submission of learned Senior Counsel Mr. Dave on behalf of Camlin Ltd. that what Luxor had imported was only LDPE Powder whereas Camlin's product contained not just plastic resins but also wax colouring material fillers etc. and therefore it was a different product. What had been imported by Luxor Pen Co. was clearly not just synthetic resin but a compound which was identical to that being manufactured by Camlin Ltd. As one of the major manufacturers of crayon in this country was importing this material, the Department had clearly established the marketability of this material. It is settled law that for a good to be marketable it is not necessary that there must be actual instances of sale by the assessee. Marketability is essentially a question of fact to be decided on facts of each case and once it is shown that a product has actually been bought, marketability gets established. Having considered the rival submissions we are unable to accept the submission that this compound is to be classified under tariff Item No. 96.09. Chapter 96 deals with manufactured articles. The HSN Explanatory Note also shows that this chapter, and in particular tariff heading 96.09, deal with finished products. Further, there is a big distinction between an intermediate product and an unfinished or incomplete product. Admittedly, the product is an intermediate product. It is not a product in an unfinished stage. Therefore, interpretative Rule 2(a) will have no application. This product being a compound falls under Chapter 32 and it being an ingredient in the manufacture of colouring preparation by virtue of Chapter 32 Note 2 it gets covered by Tariff Item No. 32.04.
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