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2005 (4) TMI 72 - SC - Central ExciseWhether the intermediate chemicals, Diethyl Chloro Acetanilide (DECA) and Chloro Methyl Butyl Ether (CMBE) which are formed in the process of manufacture of Butachlor are liable to tax under the Central Excise and Salt Act, 1944? Held that:- The onus was on the Revenue. The only piece of evidence which has been produced by the Revenue was a test report which merely stated that the sample showed that the items were organic chemicals . It does not in any way establish marketability. Nor can marketability be established on the basis of mere stability. Something more would have to be shown to establish that DECA AND CMBE were known in the market as commercial products. The Tribunal has ignored the evidence given by the employees of the appellant. In fact the wrong test was applied to determine the issue. The issue was not whether there was a hypothetical possibility of a purchase and sale of the commodity but whether there was sufficient proof that the product is commercially known. We fail to understand how the letter of M/s. Gharda Chemicals could in any way be stated to have supported the conclusion of the Tribunal that the product was marketable as the letter categorically states that none of the intermediates of Butachlor are marketable in India or overseas. For all these reasons, the decision of the CEGAT is set aside and the order of the Collector (Appeals) is restored. The security, if any, deposited by the appellant pursuant to interim orders of this Court be discharged.
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