TMI Blog1998 (7) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... confirms demand of Rs. 3,55,363.31 under proviso to Section 11A(1) and also imposes a penalty of Rs. 15,000/- under Rule 173Q. 2. Heard learned Advocate Shri Arvind P. Datar for the appellants and learned JDR, Shri S. Kannan, for the department. The show cause notice was issued on 1-1-1993 and the demand covers a period from 5-10-1988 to 10-10-1990. Thus the impugned order-in-original invokes the extended period. 3. Learned Advocate for the appellants submitted that the appellants are civil contractors, who have entered into a contract with M/s. Neyveli Lignite Corporation (NLC) for construction of a Ash-Bund with the help of sand blocks. He further explained that the chemical composition of the said sand blocks which were cast manually ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hit by time bar had been raised before the learned Collector. He cited in this connection the decision in the case of Indian Textile Paper Tube Co. v. C.C.E. as reported in 1995 (77) E.L.T. 372 (Tribunal), wherein, the majority decision has held that for test of marketability the initial burden is on the department to prove that the product is known in the market and is marketable. It has been further held therein that mere mention of the product in the Tariff Schedule does not make it ipso facto marketable. Since the burden was not discharged in that case, the Hon ble Tribunal held that the product was not goods and not chargeable to duty. Learned Advocate submits that the principle involved in this decision squarely applies to the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e site of the Ash-Bund (the site of M/s. NLC) as not marketable and, therefore, is not goods for the following reasons :- (a) The said sand blocks do not confirm to any standard shape or size as known in the market, as is distinct from normal bricks or pre-cast or pre-stressed cement concrete blocks, for both of which a clear market exists. (b) In their captive use as per the contract entered with M/s. NLC, there is no sale of the blocks involved as such because the contract is one of erection i.e. it is a works contract. Therefore, the sand blocks as such are not sold by the appellants to M/s. NLC. (c) As has been laid down in the case of M/s. National Textile Paper Tube Co. supra, the initial burden for proving marketability of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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