TMI Blog1998 (6) TMI 348X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 160/86. The officers seized the goods namely, Reed Type Frequency meters numbering 369 valued at Rs. 1,94,724/- for action under the Central Excise Rules. 2. A follow up search was made of the premises of the other Appellant EEW at Lonovala by the Central Excise Officers of Pune on 14-8-1992 which resulted in seizure of 79 RTF meters which were ready for despatch which also had the brand name AE of the Appellant Automatic Electric Co. printed on their dials. In the statement given on 14-8-1992, the proprietor of Appellant EEW, Shri P.J. Taraporewala stated that the meters are in semi-finished condition manufactured with the technical know-how of Appellant AE and that they are sold to AE only. He further stated that the meters are embossed with the marking AE which is the brand name belonging to the other Appellant on the plastic body of the meter. These are despatched to them under challan-cum-bill. He further stated that after the seizure of the RTF meters from the premises of Appellant AE they have stopped putting the brand name AE on the meters. The statement was given by one V.T. Gosavi, Jr. Commercial Officer of the Appellant AE stating that the meters are manufact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are sold to customers various tests had to be carried out and unless these tests are carried out the meters will not give the required performance and cannot be marketed. The goods are semi-finished goods, being the removal to another manufacturer in which case, the learned Counsel contended that the ratio of the Tribunal decision in Reckitt Colman of India Ltd. v. Collector of Central Excise - 1992 (62) E.L.T. 389 will apply, wherein the Tribunal held that removal of semi-finished good from one factory to another for conversion into finished goods will not attract duty. The technical personnel have clearly stated in his affidavit that the goods as received from EEW are not marketable. It was also pleaded that there was no motive to evade duty in this case by EEW because whatever duty they pay, can be taken as Modvat credit by appellant AE. It was further urged that the meters have to confirm to IS specification for being marketed. The learned Counsel submitted that the offense, if any, was technical in nature and cited the Tribunal decision in Commissioner v. Chloride Industries - 1997 (22) RLT 586 and there should not be any penalty as there is no loss of revenue. 6. Shri A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rketability, in its judgment in the case of A.P. State Electricity Board v. Collector of Central Excise, Hyderabad - 1994 (70) E.L.T. 3. In this case the Supreme Court referred to its earlier decisions on the criterion of marketability, and held that, it would be evident from the facts and ratio of the earlier decisions of the Supreme Court that the marketability is an essential question of fact, to be decided in the facts of each case. The Supreme Court observed : There can be no generalisation. The fact that the goods are not in fact marketed is of no relevance. So long as the goods are marketable, they are goods for the purpose of Section 3 (Central Excise Act). It is also not necessary that the goods in question should be generally available in the market. Even if the goods are available from only one source or from a specified market it makes no difference so long as they are available for purchase. ......... Even if there is only one purchaser of these articles it must still be said that there is a market for these articles. The marketability of articles does not depend upon the number of purchasers nor is the market confined to the territorial limits of this country. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not been substantiated. Reliance placed on the Supreme Court decision in the Astra Pharmaceuticals case is not apt. That was a case relating to P P medicines under the old Tariff Item 14E of Central Excise Tariff with its definition of patent and proprietary medicines. While dealing with the case, whether the goods in that case will be classifiable under Item 14E as P P medicines or under Item 68 as not elsewhere specified in the Tariff, the Supreme Court referred to the distinction between house mark and product mark . The Supreme Court observed that in the pharmaceutical business a distinction is made between a house mark and product mark, the firms use on all the products of the manufacturer. It is usually a device in the form of an emblem, word or both. For each product a separate mark known as a product mark or brand name is used. In respect of all products both the product mark and the house mark will appear side by side on all the labels, cartons, etc. Goods are ordered only by the product mark or brand name. The use of house mark serves as an emblem of the manufacturer, projecting the image of the manufacturer generally. In the present case no evidence has b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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