TMI Blog1987 (3) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... neither sold nor marketed by them. Therefore they filed a revised classification list 23/78 in which they omitted starch slurry. The Superintendent then called upon them to explain why they had deleted starch slurry from their classification list. The appellants replied giving their reasons therefore. Later they filed another classification list in which also they omitted starch slurry. Long subsequent thereto the Assistant Collector issued notice calling upon them to show cause why the two classification lists filed by the appellants ought not to be amended by inclusion of starch, slurry, therein as folding under T.I. 68 CET. The appellants replied putting forward their contentions. They explained that starch slurry emerged temporarily as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lusion earlier of starch slurry in the classification list dated 2-3-1978 was due to mistake and ignorance on their part and that on realising the same they filed the revised classification list. According to them starch slurry was not excisable since it was not goods as would call for imposition of excise duty and that the same emerged only as an intermediate product in the manufacture of starch. Shri Mehta contends that starch slurry is highly fermentable and therefore could neither be stored for long nor marketed and hence the same would not be goods. On the filing of the revised classification list as abovesaid the Superintendent had called upon the appellants to explain their omission of starch slurry from the classification list. They ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n excisable item in their earlier classification list but had omitted the same in their two subsequent lists, without even indicating any reason why they had done so. Thereupon the Superintendent had drawn their attention to the said fact and had called them to explain the said omission. This had subsequently been followed by the show cause notice by the Assistant Collector referred to earlier. It is thereafter that, in granting approval of the classification list, the Assistant Collector had directed inclusion, of starch slurry also in the said lists. It appears to us that it would not be correct to contend that the power of modification of the list under Rule 173B(2) of the Central Excise Rules would not include the power to direct inclus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cturing process being carried out on the raw-material the resultant product would not invite imposition of Central Excise duty unless the same was marketable and has a market. The assertion of the appellants that they have never marketed starch slurry has not been disproved by the Department. Nor has any evidence been produced by the Deptt. to establish that starch slurry has been marketed by anybody else also. The burden would be on the Deptt. to establish that starch slurry has a market, and is being marketed, in order to establish that it would be goods for purposes of levy of central excise duty. In the absence of proof for the Deptt. on this aspect the contention for the appellants has to be accepted. 7. We may in this connection ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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