9911796707
TMI Blog1998 (2) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... Pulp itself is also an intermediate product for manufacture of paper which is a final product manufactured by the appellant. 1.2 Prior to introduction of new tariff w.e.f. 28-2-1986, all intermediate products, falling under Tariff Item 68 used captively within the same factory were exempted from duty under Notification 118/75-C.E. On introduction of the new tariff, the appellant submitted a calssification list for its products, the same as was submitted earlier, except by changing the tariff heading/sub-heading and notification if any. 1.3 Range Supdt. of Central Excise vide his letter dated 11-3-1986 informed the appellant that it should include, inter alia, magnesium bisulphite falling under sub-heading 2805.90 in the classif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the appellant has stressed the aforesaid submissions of non-marketability and unstability. He has urged that these are question of fact and burden of adducing the evidence for marketability lies on the Revenue before the product can be levied to excise duty. He has also urged that it is too well-settled a proposition now that mere mention of a product in the Central Excise Tariff does not make it excisable unless it is marketable. For the aforesaid proposition, ld. Advocate relies upon, (i) 1989 (40) E.L.T. 280 (S.C.) [Bhor Industries Ltd. v. Collector of Central Excise], (ii) 1989 (43) E.L.T. 214 (S.C.) [Collector v. Ambalal Sarabhai Enterprises], (iii) 1995 (76) E.L.T. 241 (S.C.) [Moti Laminates (P) Ltd. v. Collector ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us. Whole basis of Revenue's case, therefore, submits the ld. Advocate, gets knocked-off. 2.3 Ld. Advocate further submits that the appellant's contention that the product was unstable inasmuch as it would lose its properties and efficacy if not used within a period of about four hours was referred to the Chemical Examiner after drawing a sample on 7-8-1986 but the department has not communicated any opinion of Chemical Examiner on the same in respect of the said sample. Even the subsequent sample drawn on 28-10-1986 to which the adjudicating authority has referred in the impugned order also put a query to the Chemical Examiner, Customs House, Calcutta as follows : "Whether the product is magnesium bisulphite and the product is stable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t from the introduction of new tariff w.e.f. 28-2-1986 and the appellant held a view, as it holds even now, that the product is not exigible to duty at all. In the circumstances, there is no question of contravention of rules (relating to filing of classification list, price list, maintenance of Central Excise records) with intent to evade payment of duty. In the foregoing facts and circumstances, submits the ld. Advocate, demand of duty of Rs. 10,56,459/- for the period 1-7-1986 to 28-2-1987 against the show cause notice dated 21-8-1989 is grossly barred by time. 3.1 Ld. JDR, Shri R.K. Roy, on the other hand, reiterates the findings of the adjudicating authority both on merits of the demand and on limitation. He points out that the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emical Examiner regarding stability of the product but the failure of the Chemical Examiner to reply to that query. We also observe that despite assertion of the appellant that the product is unstable, no evidence has been adduced by the appellant in support of that assertion by ways of technical opinion or literature. We, therefore, cannot hold, either way i.e. whether the product is stable or unstable, because of lack of any evidence for such a holding. For the same reason, we cannot also hold whether the product is marketable or not. 4.2 It is true that with the reversal of Tribunal's decision in the case of Punjab National Fertiliser [1988 (37) E.L.T. 155] by the Apex Court (supra), basis of holding of the lower authority that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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