TMI Blog2015 (6) TMI 374X X X X Extracts X X X X X X X X Extracts X X X X ..... cussion, we are of the considered view that product in question are not dutiable on both the counts of classification as well as marketability. We therefore set aside the impugned orders . Revenue has not discharged the burden of proof that the product in question is marketable or otherwise and from the nature of the product coupled with the fact that printed material printed in the appellants' printing press is not for general use in the market but for their own use, the goods clearly not marketable. In terms of definition of excisable goods and explanation thereto the goods should be capable of being bought and sold and that too for consideration. In the present case goods being printed with name and details of Central Railway is not capable of being bought and sold for consideration hence the same is not marketable goods. Product in question are not dutiable on both the counts of classification as well as marketability. We therefore set aside the impugned orders - Decided in favour of assessee. - Appeal No. E/86854/14, E/666/12, E/1693/10, E/1222, E/86807/13 - Final Order Nos. A/1140-1144/2015/EB - Dated:- 6-5-2015 - P K Jain, Member (T) And Ramesh Nair, Member (J),JJ. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... F. No. V-Adj (48) CSCN/M-I/15-18/12 dated 7/12/2012 Duty demand of ₹ 1,35,16,967/- Penalty of ₹ 5,000/- under Rule 25 of the Central Excise Rules, 2002. 5. E/86807/13-MUM 1 2 /SK/M-I/2013 dated 10/1/2013 F.No. V-Adj(48) CSCN/M-I/15-17/2011 dated 28/5/2011 Duty demand of ₹ 1,16,97,025/- F.NO. V-Adj(48) CSCN/M-1/15-18/12 dated 7/12/2012 Duty demand of ₹ 1,35,16,967/- Penalty of ₹ 5,000/- under Rule 25 of the Central Excise Rules, 2002. The fact of the case is that the appellant Central Railway printing press located at Byculla, Mumbai are engaged in printing various forms such as hospital form, leave application form, reservations form application form for passes, application form for privileged tickets and similar various forms for differe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m and various other forms which are used for working the railway's day to day function. He submits that in show cause notice and adjudication order the tariff entry description 4820 was reproduced verbatim and accordingly contended that this product classified under 4820 whereas actual product are not those which described and mentioned in the tariff entry of 4820. He submits that as per the samples of the various forms it can be seen that these forms are not covered under 4820 whereas it is correctly classifiable under 4909 as product of printing industries. Alternately he submits that all these goods are printed with details required for in-house working of various function undertaken by railway, these printed forms are solely useful for railways therefore these are not general form which can be used by any person. Therefore these goods are strictly used for captive consumption for Central Railway only, hence neither marketed nor capable of being marketed. As regards the observation of the Ld. Commissioner that it is commercial know product, he submits that once these product are printed after printing only it becomes goods and after printing it is no use for any other person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Revenue the entire proceedings in this case is liable to be dropped only on this ground alone. He also submits that when all these printed products are printed with the name of Central Railway and printed information contained therein are meant for railways function it is very obvious that these material cannot be used by any other person, therefore it is not capable of being sold or purchased, on this fact also demand is not sustainable. 3. On the other hand Shri. Hitesh Shah, Ld. Commissioner reiterates the findings of the impugned order. He submits that product in question is printed paper and same are correctly classifiable under chapter 4820. He referred tariff chapter note of HSN of chapter 48 and 49. He submits that for printed stationary, the printing is merely incidental to their primary use for writing or typing then it is classifiable under chapter 48 therefore in the present case also the printing material printing is incidental product is correctly classifiable under chapter 48 and not under 49. He placed reliance on following judgments: (a) Surya Offset Vs. Commissioner of C.Ex. Ahmedabad [2011 (267) ELT 516 (Tri.-Ahmd) (b) Headway Lothographic Co. Vs. Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and cards etc. requiring only the insertion of particulars (e.g. dates and names) are classified in this heading. Thus, existence of blank portions in printed forms do not take them out of other printed products or articles . Many are the items that readily come to mind. Most printed application forms would leave the name and other particulars of the applicant blank. Similarly, ticket forms would not have names/numbers of the buyers. In the present case also, particulars of the buyers/numbers of the lottery tickets would get printed only at the time of sale of tickets. That does not affect the character and identity of the paper rolls as blank lottery tickets. Therefore, the finding of the Commissioner that these rolls are not products of printing industry is not sustainable. 11. We also find that an almost identical issue, of the classification of the lottery ticket, had come up before a Co-ordinate Bench of this Tribunal in the case of M/s Sai Security Printers Ltd. v. C.C.E., Faridabad - Appeal No. E/1576/2004. and that Bench held that the correct classification would be under 4901.90. We are in complete agreement with that decision and following that order, the classificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... haracteristics and therefore, it has to be held that printing is not merely incidental to the use of the products. Applying the ratio of the decisions cited supra, it becomes evident that the impugned goods prior to enactment of Finance Bill, 2012 merit classification as products of the printing industry . Further, it is seen that in the Finance Bill, 2012 a specific note 14 (supra) was inserted in Chapter 48 to bring within the scope of Chapter 48 certain products of the printing industry. The said amendment introduced by way of Note 14 to Chapter 48, was only prospective and was not given any retrospective effect. This itself indicates that prior to the insertion of Note 14 to Chapter 48, the impugned products merit classification under Chapter 49. 7. In the light of the above discussion, we are of the considered view that the impugned order does not suffer from any infirmity. Accordingly, we dismiss the appeal filed by the Revenue as devoid of merits. METAGRAPHS PVT. LTD. Versus COLLECTOR OF CENTRAL EXCISE, BOMBAY 1996 (88) E.L.T. 630 (S.C.) 10. The label announces to the customer that the product is or is not of his choice and his purchase of the commodity would be de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 has laid down the ratio which is with respect reproduced. 10. The label announces to the customer that the product is or is not of his choice and his purchase of the commodity would be decided by the printed matter on the label. The printing of the label is not incidental to its use but primary in the sense that it communicates to the customer about the product and this serves a definite purpose. This Court in Rollatainers case held that what is exempt under the notification is the 'product' of the printing industry. The 'product' in this case is the carton. The printing industry by itself cannot bring the carton into existence . Let us apply this above formula to the facts of this case. The 'product' in this case is the aluminium printed label. The printing industry has brought the label into existence. That being the position and further the test of trade having understood this label as the product of printing industry, there is no difficulty in holding that the labels in question are the products of the printing industry. It is true that all products on which some printing is done, are not the products of printing industry. It depends upon the natu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... folders etc. can be used by Central railway alone and it can neither be used nor shall be useful for any other person other than Central Railway. This undisputed facts is more than sufficient reason to hold that the product is not marketable because same is neither capable of being bought and sold nor can be factually bought and sold. As regard the marketability, the contention of the Revenue is that the product is commercially known in the market does not hold water for the reason that if the product in the present case since not capable being bought and sold, cannot be commercially known as marketable. We agree with the submission of Ld. Sr. Counsel that Revenue has not undertaken any exercise to prove that this very product are marketable. Therefore admittedly the Revenue has not discharged the burden lies on them as regard the test of marketability of the product. The judgments in this regard relied upon by the Ld. Sr. Counsel squarely applicable to the present case that if the burden of proof of marketability does not discharged by the Revenue by producing the evidence then claim of appellant that the goods in question is not marketable must be accepted and no contrary view c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been brought on record by the excise authorities to show that the said goods are marketable in the sense stated above. Based on the evidence of affidavits filed by the appellant it is sought to be argued that the deponents may not be interested in purchasing 'glass lumps' but it does not disprove marketability of the goods. We are unable to accept this contention. The burden of showing that the goods are marketable is on the Revenue. In the absence of any proof brought on record by the Revenue that 'glass lumps' are marketable or capable of being marketed, it is not possible to hold that the test of marketability is satisfied. For these reasons we set aside the order of the CEGAT under challenge and allow the appeal with costs. C.A. 7114/2000 @ SLP (C) 7908/85 : BHOR INDUSTRIES LTD. Versus COLLECTOR OF CENTRAL EXCISE [1989 (40) E.L.T. 280 (S.C)] 6. This view was reiterated again in Union Carbide India Ltd. v. Union of India - 1986 (24) E.L.T. 169 (S.C.) = (1986) 2 SCC 547 where Pathak, J. as the learned Chief Justice then was, speaking for the Court observed that in order to attract excise duty the article manufactured must be capable of sale to a consumer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (d) of the Act means goods specified in the Schedule to the Central Excise Tariff Act, 1985 as being subject to a duty of excise and includes salt. Therefore, it is necessary, in a case like this, to find out whether there are goods, that is to say, articles as known in the market as separate distinct identifiable commodities and whether the tariff duty levied would be as specified in the Schedule. Simply because a certain article falls within the Schedule it would not be dutiable under excise law if the said article is not goods known to the market. Marketability, therefore, is an essential ingredient in order to be dutiable under the Schedule to Central Excise Tariff Act, 1985. 11. In view of the Appellate Collector's order dated 14-1-1974 it was the duty of the revenue to adduce evidence or proof that the articles in question were goods. No evidence or proof was produced. The Tribunal went wrong in not applying the proper test. The test of marketability or capable of being marketed was not applied by the Tribunal. MOTI LAMINATES PVT. LTD. Versus COLLECTOR OF CENTRAL EX., AHMEDABAD [1995 (76) E.L.T. 241 (S.C.)] 11. It cannot thus be disputed that even if the resin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able or was capable of being marketed. Mere transfer of BMS by the appellant from its factory at Bangalore to its own unit at Patalganga for manufacture of final product does not show that the product was either marketed or was marketable. 12. Since the Revenue has failed to lead any evidence to show that the product in question was marketable or was capable of being marketed and that the product in question was a distinct product for being sold in the market, it has to be held that the product in question was not marketable. Accordingly, the appeal is accepted. The order of the Tribunal is set aside with consequential effect. No costs. On going through above judgments it is found that since, in the present case, first the Revenue has not discharged the burden of proof that the product in question is marketable or otherwise and from the nature of the product coupled with the fact that printed material printed in the appellants' printing press is not for general use in the market but for their own use, the goods clearly not marketable. We are fully in agreement with the Ld. Sr. Counsel that in terms of definition of excisable goods and explanation thereto the goods should ..... X X X X Extracts X X X X X X X X Extracts X X X X
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