TMI Blog2013 (3) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... of M/s. Sankla Chemicals and Shri Sushil Garodia of M/s. Progressive Packaging Industries, according to whom, the corrugation gum made in those factories has shelf-life 3 to 4 days. As found that no chemical test of the corrugation gum has been done by the department to establish that the same was containing any preservatives or not. In absence of such chemical test report, merely on the basis of statements of employees of some other factories, it cannot be concluded that the corrugation gum manufactured in the appellant’s factory also has shelf-life of 3 to 4 days and on this basis marketable. The burden of proving that a particular product produced by a manufacturer is marketable is on the Department and the Department has not produce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice dated 29-5-2001 was issued for demand of duty amounting to Rs. 8,43,315/- on the clearances of corrugation gum during the period from May, 1996 to Feb., 2001 for captive consumption. This show cause notice was issued by invoking extended period under proviso to Section 11A(1) of the Act and besides recovery of interest on duty, also sought imposition of penalty on the appellant under Section 11AC of the Act. 2. The show cause notice was adjudicated by the Commissioner vide order-in-original dated 2-3-2005 by which the Commissioner holding that corrugation gum is an excisable item and since certain quantity of corrugation gum cleared captively were used in the manufacture of exempted corrugated boxes/cartons, the same would be liab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no justification for invoking longer limitation period under proviso to Section 11A(l) of the Central Excise Act, 1944, that for the same reason, neither interest on duty under Section 11AB nor penalty on the appellant under Section 11AC would be applicable and that in view of this, the impugned order is not correct. 5. Shri I. Baig, the Departmental Representative, defended the impugned order by reiterating the findings of the Commissioner in it and emphasized that corrugation gum made by the appellant has shelf-life which is clear from the statement of two persons, Shri V.S. Gupta of M/s. Sankla Chemicals and Shri Sushil Garodia of M/s. Progressive Packaging Industries, that since the corrugation gum has shelf-life, the same would be e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion is as to whether the corrugation gum, in question, has shelf-life. The appellant s plea is that since they make corrugation gum purely for captive consumption and not for sale, they do not add any chemical preservatives to increase its shelf-life and hence the corrugation gum made by them is not marketable and not excisable. The department simply relies upon the statements of Shri V.S. Gupta of M/s. Sankla Chemicals and Shri Sushil Garodia of M/s. Progressive Packaging Industries, according to whom, the corrugation gum made in those factories has shelf-life 3 to 4 days. However, the appellant s plea is that for increasing the shelf-life and making the corrugation gum marketable, some chemicals have to be added and since the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X
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