TMI Blog1999 (7) TMI 475X X X X Extracts X X X X X X X X Extracts X X X X ..... zolyl) Ethyl Sulphide (v) Epoxy Derivatives (Epoxy) 17-21 Dihydroxy 16-Alpha-Methyl-9, 11, Epoxy Progna-1, 4-Diono-3, 20 Diono Epox. 2.3 A show cause notice dated 3-7-1989 was issued to them for demanding duty on these 5 products manufactured and captively consumed during the period from 1-3-1986 to 31-12-1987. The Collector, under the impugned order, confirmed the demand of Central Excise duty amounting to Rs. 42,39,201.30, imposed a penalty of Rs. 30,00,000/- and confiscated land, building, plant etc. with an option to redeem the same on payment of fine of Rs. 5,00,000/- holding that all the products are classifiable under Chapter 29 of the schedule to the Central Excise Tariff Act; that as per report of Chemical Examiner all the products were organic compound; that as per cross examination of Superintendent Shri S.L. Saggu, Product 3-4 Diamino Benzophenon was received in the Appellant s factory; that they were purchasing earlier the product Thiourea Derivatives ; that they had been recording the production of each of the 5 impugned products in their log sheets and these products were separately kept in containers and stored till they were further put to use captively. 3.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of being brought and sold in the market. He relied upon the decision of the Supreme Court in the case of A.P. State Electricity Board v. C.C.E. - 1994 (70) E.L.T. 3 (S.C.) wherein the Apex Court held that the marketability is thus essentially a question of fact to be decided in the facts of each case. 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. It is not also necessary that the goods in question should be generally available in the market. Drawing our attention to the impugned order, the ld. DR mentioned that the production of all the impugned products were recorded by the Appellants; these products were kept in containers stored till they were required for captive use; these goods were weighed and weight was recorded in the log sheet in the plants; that Shri S.C. Manakiwal, Dy. Chief Executive of Research and Development of the Appellants, had stated in his statement that in the log sheets mentioned in the plant, they were showing the date of Brown oil separately and the quantity is determined by weight; the Brown oil was kept in plastic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 29 applies to mixture of two or more isomers of the same organic compounds (whether or not containing impurities). The Chemical Examiner, in his test Report has clearly deposed in respect of each of the impugned product as under : Sr. No. Name of the intermediate product Result declared by the Chemical Examiner 1. Thiourea derivatives. The sample is in the form of white coloured powder. It is an organic compound . Note : On the basis of write-up submitted by the party, the sample may be considered as organic chemical organo sulphur compound. 2. 3-4 Diamino Benzophenone The sample is in the form of yellow coloured powder. It is an organic compound. 3-4 Diamino Benzophenone is an amino function organic chemical . 3. Anilino compound i.e. 3-4-5 Trimethoxy Benzoledene Alinino propionitrile. The sample is in the form of yellow powder. It is on organic compound. Note : On the basis of write-up submitted by the party, the sample may be considered as organic chemical nitrile function. 4. Brown oil i.e. Ethyl (2-2(Methyl-5-Nitro-1-Imidazolyl) Ethyl sulphide. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have not been successful in controverting the findings of the Collector. The concept of being known to the market is important not from the point of view whether the goods are sold as such but from the point of view whether the goods are manufactured as such. The fact that the goods are not actually sold in the market would not make any difference since excise duty is leviable on the manufacture of goods and not on their sale. Actual sale is not an essential ingredient for goods to be excisable. This was the view of the Apex Court even in C.C.E. v. Ambalal Sarabhai Enterprises (supra). As contended by the ld. DR the Supreme Court in A.P. State Electricity Board s case, supra, held that marketability is essentially a question of fact to be decided in the facts of each case. In the present matters the fact of purchase of some of the impugned products from the market, their storage, weighment and storage indicate that the impugned goods can ordinarily come to the market to be bought and sold. We are, therefore, of the view that the Department has discharged its onus to prove that the impugned products are marketable. 9. We do not find any substance in the learned Advocate s submissi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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