TMI Blog1995 (4) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... r, in the impugned order has held the subject product to be excisable and has classified the same under Tariff sub-heading 3906.10. The impugned order has been passed after the Hon ble CEGAT vide their order No. 705/91-C, dated 16-9-1991 had remanded the case to the Assistant Collector for fresh decision in which the earlier order of approval dated 7-3-1986 on classificatioin had been upheld by the Collector (Appeals) vide his order dated 5-5-1987. While remanding the case to the Assistant Collector, the Hon ble CEGAT made the following observations : The Department has, further, not led any evidence to controvert the contention of the appellants that the pre-polymer syrup, which they manufactured because of its unstable nature and short shelf life is not marketable. It has been well-settled by a series of decisions of the Supreme Court, High Courts and the Tribunal that marketability is an essential criterion to be established by the evidence showing the product as excisable goods in order to levy the duty thereon. Therefore, it is held that on the facts and in the circumstances of the case, there is a need for a fresh determination of these aspects by the Department and accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the fact that the appellants have not cleared the subject product in the market does not mean that the product is not ,marketable, that the product at pre and post stage (monomer of methyl methacrylate and acrylic sheets) is marketed by the appellants and that except for the short life span, the appellants have not put up any point in support of their claim of non-marketability. The Assistant Collector has mentioned that the appellants have tried to create the impression that the monomer of methyl methacrylate gets directly converted to acrylic sheets which is contrary to the factual position. During the process of manufacture the polymerisation comes into picture and this amounts to manufacture. Even if the polymer with the passage of time thickens and solidifies and gets converted to acrylic sheets as per chapter note 6 of Chapter 39, it amounts to manufacture. In view of his findings, the Assistant Collector has held the subject goods to be excisable and has classified the same under Tariff sub-heading 3906.10 5. The Collector (Appeals) found that in terms of the remand order by the Tribunal, the Assistant Collector was required to prove beyond doubt the marketability o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the Tribunal in the case of Safari Industries v. Collector of Central Excise reported in 1991 (54) E.L.T. 308, the specific entry in the tariff, it was argued, is sufficient and it is not necessary thereafter to establish marketability. What is required to be proved is the capability of the goods for being marketed. The ld. S.D.R. in this regard cited and relied upon the following case law : (i) Union Carbide v. Collector of Central Excise - 1978 (2) E.L.T. 180 (Cal.); (ii) Orissa Construction Corporation v. C.C.E. - 1983 (14) E.L.T. 2382 (Tribunal); and (iii) Union of India v. Bata India Ltd. - 1993 (68) E.L.T. 756 7. The ld. S.D.R., further, referred to the textual authorities on the subject `Materials Technology - 6 by Longman De Bussy which shows that the product like polymethyl methacrylate has a definite structure. The ld. S.D.R. referred to `Modern Plastics Technology Raymond B. Seymour to indicate Methyl methacrylate has a specific chemical formula. The ld. S.D.R. referred to the technical description of acrylic adhesives which showed that Methyl methacrylate has been used for many years as a reactive adhesive for joining together poly (methyl methacrylat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings has not at all considered the evidence of non-marketability produced by them. The ld. Counsel further, argued that mere fact that the item finds a specific mention in the tariff is not sufficient for levying duty thereon. The ld. Counsel, in this regard cited and relied upon the recent Supreme Court decision in the case of Moti Laminates Pvt. Ltd. v. Collector of Central Excise, Ahmedabad - 1995 (76) E.L.T. 2411 (SC). The ld. Counsel, further, urged that there is no chemical formula for the goods in question because they are pre-polymer and emerges intermediate in the manufacturing process. The formula given in the textual authorities produced by the ld. S.D.R. is the chemical formula for the final product which is fully polymerised MMA. 10. We have carefully considered the submissions made by both the sides. We find that the Tribunal while remanding the matter to the Assistant Collector had perused the earlier order of the Assistant Collector No. 27/1982, dated 30-9-1982 and had found that the department had not led evidence to controvert the contention of the appellants that the pre-polymer syrup because of its unstable nature or short shelf life is not marketable. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined liquid till the date of result i.e. 17-3-1993. The sample was drawn at the time of visit on 11-3-1993. The ultimate conclusion of the Chemical Examiner was as follows : It is obvious and may be inferred from the above observations and technical references that the product under reference is unstable and it is not a completely polymerised product. However, the time period for its complete polymerisation cannot be fixed which mainly depends upon the prevailing conditions and handling, viz. temperature, exposure, quality of catalyst used, etc. The marketability of the product i.e. pre-polymer of MMA Monomer may be ascertained by market survey at your end." 12. It is evident from these two reports by the Head of the Department of Chemistry, Vallabh Vidyanagar and the Assistant Chemical Examiner of the Revenue Department that the goods pre-polymer syrup is not a completely polymerised product and is highly unstable and it is not a polymerised product. As for marketability of the product, the Superintendent had directed the respondents by his letter of 18-3-1993 enclosing therewith the report of the Assistant Chemical Examiner on the product in which the Chemical Examiner has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Collector has not been reviewed. In this context, further, the respondents, have rightly cited and relied upon the recent Supreme Court judgment in the case of Moti Laminates Pvt. Ltd. (supra). There also, the department s case was that intermediate product resol or A-stage synthetic resin being specified in the Tariff Item 15A (1) of CET was exigible to duty because of the very fact of [sic] specific description in the tariff. It was argued before the Supreme Court by the Department that once it was found that intermediate goods captively consumed were resols specifically covered in the tariff then it was exigible to duty and there will be no further requirement of satisfying the common parlance test. This was a chemical and not a product which is commonly bought and sold in the market. It was argued that the marketability depends on the nature of the goods and the test of marketability could not be applied to such goods as resol and it was urged that once the intermediate goods produced by the appellants was found to be resols and which have been mentioned in Item [sic] burden on the department stood discharged. However, this arguement did not find favour with the Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resin produced by the appellants which are mentioned as resols under Tariff Item No. 15A were not exigible to duty. The finding of the Tribunal that once the product manufactured by the appellants answered the chemical description of the product under Tariff Item 15A, it was assessable to duty whether it was marketable or not was thus not well founded. 13. The ratio of the above decision of the Supreme Court is applicable to the facts of the present case. The nature of the goods found as a result of test by Departmental Chemical Examiner as well as an independent authority like the Head of the Chemistry of the University, Vallabh Vidyanagar have both confirmed the highly unstable character of the pre-polymer syrup of Methyl Methacrylate Monomer (MMA). The respondents have furnished evidence of their dealers to say that the pre-polymer syrup is not marketable. The earlier adjudication order of the Assistant Collector has also given a finding that the goods are neither marketed nor are marketable. In such a situation, in the absence of any rebuttal of evidence of non-marketability produced by the respondents by the Assistant Collector in his order passed in the de novo proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X
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