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2014 (6) TMI 859 - HC - Central ExciseCaptive consumption - marketability - non-woven fabric - Excise duty, interest and penalty - Assessee engaged in the manufacture of Jute backed Floor Coverings - Jute backed Floor Coverings are exempted from the payment of duty - Assessee contended that non-woven fabric which is cleared in market is different from the fabric which is captively consumed and the same is not marketable as such, hence it is not excisable – Whether under the facts and circumstances of this case, the impugned order passed by the CESTAT, holding that the loosely assembled fibre web in roll form emerging at a stage before the exempted finished jute carpet, is marketable and therefore liable to duty, without considering the relevant records and material submitted by the Appellants, is correct and sustainable in law. Held that:- CESTAT in the impugned order comes to a finding that there is no dispute about the fact that the impugned product "goes through first pass only whereas goods cleared from the factory go through second pass. Therefore, compactness/tensile strength/dimensional stability of 'non-woven fabrics' cleared from factory is much more than the intermediate product." Having come to the aforesaid conclusion and itself making a distinction between the impugned product and the "non-woven fabrics" that were being cleared by the Appellant on payment of the requisite Excise Duty, we find that the CESTAT misdirected itself by shifting the burden on the Appellant of establishing that the impugned product is not marketable. Department led no evidence whatsoever to establish that the impugned product in the form that it is, is marketable and therefore dutiable under the provisions of the Act. Furthermore, we find that the CESTAT has not taken into consideration several orders passed by it earlier in similar matters such as that of the Appellant and which have been referred to by us, earlier in this judgement - Matter remanded back - Decided in favour of assessee.
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