TMI Blog2014 (8) TMI 499X X X X Extracts X X X X X X X X Extracts X X X X ..... are marketable and hence, excisable. Merely on the basis of shelf life, the marketability of a product cannot be determined. Therefore, the question of marketability of the resins, in question, requires in depth consideration based on the evidence on record which is possible only at the stage of final hearing, and this question cannot be decided only on the basis of shelf life. Therefore, at this stage, it cannot be said that this question is likely to be decided in favour of the Appellants - stay granted partly. - E/58365,58305,58382,58361/2013-Excise (DB) - Stay Order No. 51868-51871 - Dated:- 21-4-2014 - G Raghuram And Rakesh Kumar, JJ. For the Appellants : Shri V Lakshmikuaran, Shri R K Tomar and Sanjay Grover, Advs. For the Respondent : Ms Suchitra Sharma, Jt. CDR PER : Rakesh Kumar Since the facts and issue involved in these appeals and stay applications are common, the same were heard together and are being disposed of by common order. 1.1 The appellants manufacture Decorative Plywood, Block Board, Particle Board, Flush Doors and Aluminium Sheet/Aluminium Foil, based decorative laminate, MDF Board, High Pressure Laminates etc., chargeable to cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs.1,10,40,991/- Under Section 11AC 4. M/s. Shirdi Industries Ltd. 39/Commr./ Meerut- 11/2012-13 dt.29.3.13 2007-08 to 30.11.2011 Rs.14,23,18,197/ - along with interest under Section 11AB Rs.14,23,18,197/-Under Section 11AC 1.2 All the above demands have been confirmed against the appellants by invoking extended period under proviso to Section 11 A(1) of the Central Excise Act, 1944 by alleging that the appellants have suppressed from the Department, the material fact of production of plastic resins and their captive use and on the same ground, penalty under Section 11 AC has been imposed. 1.3 Against the above orders of the Commissioner, these four appeals have been filed along with stay applications. 2. Heard both the sides in respect of stay applications. 3. Shri V. Lakshmikumaran, Advocate, the Id. Counsel representing M/s. Greenply Industries and M/s. Archidply Industries Ltd, Shri R.K. Tomar, Advocate, the ld. Counsel representing M/s. Shirdi Industries Ltd. and Shri Sanjay Grover, Advocate, Representing M/s. Rama Panels Pvt. Ltd, pleaded that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assifiable under heading 3506 and not under heading no. 3909 of the Central Excise Tariff and, hence, the same are not in the negative list for exemption and would be eligible for exemption and in this regard, reliance is placed on the Tribunal's judgement in the case of Collector of Customs, Madras Vs. M.G. Electronics Pvt Ltd. reported in 1999 (112) ELT 425 (Tribunal), that even if duty is charged on the resins, in question, the Appellants would be eligible for input duty Cenvat Credit which is substantial, and that in any case, there is no malafide on suppression of facts on the part of the appellants, as the appellants in view of the judgement of the Apex Court in the case of M/s. Moti Laminates Pvt. Ltd. were under bonafide impression that the resins being manufactured by them for captive use were not excisable and, hence, when the department taking a contrary view seeks to charge excise duty on the same, only normal limitation period would be applicable and no malafide can be attributed to the appellants. It was, therefore, pleaded that the appellants have strong prima facie case in their favour and hence, the requirement of pre deposit of duty, untest and penalty may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , as techniques can be evolved for marketing of the goods ,in question, under controlled conditions and that the appellants have suppressed the relevant facts from the department and hence the longer limitation period has been correctly applied and penalty under Section 11 AC has been correctly imposed. She, therefore, pleaded that this is not the case for waiver from the requirement of pre deposit. 5. We have considered the submissions from both the sides and perused the records. 6. The appellants are manufacturers of UFR, MFR, CFR and PFR for captive use in the manufacture of decorative plywood etc. Since the final products - decorative plywood etc. are fully exempt from duty under notification no.50/2003-CE, the captive consumption exemption under notification no.67/95-CE would not be available in respect of the resins cleared for captive consumption. The point of dispute is as to whether these resins are chargeable to central excise duty. One plea of the appellant is that these resins are binding agents and hence would be covered by heading no. 3506 which covers prepared glues and other, prepared adhesive not elsewhere specified or included . However, we find that UFR, M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs and can easily sell the resins to them or some manufacturer may be able to supply such resins to his Customers over longer distance under controlled conditions of temperature, just as ready mix concrete, which without being constantly stirred, will set within a few hours and will become unusable, is supplied to buyers at construction sites in specially designed vehicles. In fact shelf life alone of a product cannot be the only criteria for its marketability, as if this is so, no perishable goods would be marketable. Apex Court in the case of CCE, Patna Vs Tata Iron Steel Co. Ltd., reported in 2004 (165) ELT 386(SC) has held that mere selling of a commodity does not mean it is marketable as even rubbish can be sold and that a product to be marketable must be a commodity known to the commerce and must be worthwhile to trade in. Thus, existence of market has to be inferred from the factors like - (a) existence of sellers- whether selling by traditional means or through e-commerce websites; (b) the product being mentioned in commercial journals and trade catalogues as a Commercial Commodity and its prices being quoted in such trade journals, newspapers etc. Merely ..... X X X X Extracts X X X X X X X X Extracts X X X X
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