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Hindustan Pencil Pvt Ltd Versus Commissioner Of Central Excise, Coimbatore

2015 (7) TMI 228 - CESTAT CHENNAI

Marketability of product - mixture of graphite and clay - Held that:- there is no evidence whatsoever that the mixture of graphite and clay is at all marketable. - Decision in the case of Umesh Pencil Processors (2009 (10) TMI 603 - CESTAT, CHENNAI), followed - Decided in favour of assessee. - E/EH/42253/2014 and E/331/2009 - Dated:- 15-4-2015 - D N Panda, Member (J) And R Periasami, Member (T),JJ. For the Appellant : None For the Respondent : Mr R Subramaniyam, AC (AR) ORDER Per: D N Panda: App .....

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prayer above, the record was examined and the earlier decision of the Tribunal was also gone into. Learned Commissioner (Appeals) in the present case in para 5.15 has held that mixture of graphite and clay coming into existence is marketable product. He upheld the classification made by the adjudicating authority in respect of such goods under Heading 6815 1020 discarding the claim of the appellant that it is not liable to duty for no marketable goods manufactured. 4. Above issue was before Tri .....

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Tribunal in that para in the light of judgment United Phosphorous reported in - 2000 (117) ELT 529 (SC). Ultimately, Tribunal came to the conclusion that mixture of graphite and clay cannot be bought and sold in absence of evidence of any marketability. Therefore, assessee succeeded in that appeal. 4. The aforesaid guiding decision of the Tribunal met the test of the Supreme Court in Civil Appeal No. D/15603/2010 filed by Revenue. But, Revenue failed thereat. 5. In view of above, it would be ap .....

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ich attracts 'Nil' rate of duty. The Commissioner (Appeals) observed that the appellant availed the exemption notification and, therefore, it will be treated as excisable goods. In this context, the ld. Advocate contended that, inadvertently, they availed exemption notification and thereafter they contested the excisability of the goods. It is well settled that no product is 'goods' unless shown to be marketable by the department. In the case of United Phosphorous Ltd. (supra), t .....

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