TMI Blog2015 (10) TMI 1562X X X X Extracts X X X X X X X X Extracts X X X X ..... .S. Garg, Member (Judicial) Shri Ashutosh Nath, Assistant Commissioner (AR) : For The Petitioner Shri S.N. Kantawala, Advocate : For The Respondent ORDER Per: P.K. Jain This is an appeal filed by the Revenue against the order passed by the Commissioner (Appeals). 2. Brief facts of the case are that the respondent-assessee is manufacturer of beer. During the manufacture of beer, an intermediate product wort comes into existence and this product is captively consumed by the respondent-assessee. The case of the Revenue is that the respondent-assessee is required to pay the duty on the item wort. The case was adjudicated by the original authority who dropped the demand. Aggrieved by the said order, the Revenue filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dutiability on transmission assemblies of tractors and even the Tribunal has held that the same will be dutiable. In their case there is no evidence whatsoever that the item wort is marketable or is marketed anywhere. He further submitted that similarly the decision of the Hon ble Madras High Court is relating to fly ash and fly ash bricks which are different products and the question of marketability and excisability has to be decided in the facts and circumstances of each case and there can be no uniformity and a case law for one item cannot be made applicable to other item. 5. We have considered the submissions of both the sides. We find that this Tribunal in the respondent-assessees own case reported in 2003 (158) ELT 171 (Tri.-Mum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eneral Mills Co. Ltd. [1977 (1) E.L.T. (J 199) (S.C.)] by a Constitutional Bench, wherein it has been held. 17. These definitions make it clear that to become goods an article must be something which can ordinarily come to the market to be bought and sold by merchants and traders. This binding decision has been followed by the Supreme Court in a series of decisions, including the decision in the case of Indian Cable Company Ltd. [1994 (74) E.L.T. 22 (S.C.)], relied upon by the adjudicator. In this case a full Bench had held marketability is a decisive test for dutiability. It only means salability or suitable for sale. It need not be in fact marketed. The article should be capable of being sold or been sold to consumers in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f calcium carbide was not upheld since Chapter III of Carbide of Calcium Rules, 1937, made under the Act, 1934, prohibited the transport of Calcium carbide, its storage, its delivery or discharge and its sale, except after complying with the directions prescribed thereunder. And since those conditions were not complied with they held that the Calcium carbide in that case was not goods. In this case also the plea has been made, before us that controls prescribed under the Maharashtra State enactments viz., manufacture of Beer and Wine Rules, 1966, where it is mentioned at different rules, the process is in the control of a Brewery Officer/(excise) and no removals of WORT could be effected without his permission. This plea of the appellant wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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