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2005 (2) TMI 119 - SC - Central ExciseWhether the intermediate product produced in the manufacture of zinc in the assessee's factory is marketable and if it is marketable then whether the product is to be classified under Tariff Heading 28.43? Held that:- In the present case, the department has made no efforts to ascertain whether silver chloride emerging from the treatment adopted in the assessee's factory, having 50% to 53% silver content, had a market. Mathematical ratio between total quantity of silver chloride and silver content cannot establish marketability. The burden was on the department to prove such marketability. In the circumstances, on facts, we hold that the department has failed to prove the test of marketability. That since 1990, when the case of Hindustan Zinc Ltd. (1989 (9) TMI 228 - CEGAT, NEW DELHI) came to be decided, the question of excisability of silver chloride has been cropping up and yet till this day no steps have been taken by the department to go to the market and collect proper evidence of marketability. In most of the matters, we find lethargy and reluctance on the part of the department to collect evidence on marketability and even in cases where market enquiry is made it is made in a perfunctory manner. Consequently, despite the department having good case on classification, we are constrained to allow the appeal of the assessee on marketability for want of evidence. Assessee appeal allowed.
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