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2015 (10) TMI 1562 - CESTAT MUMBAI

2015 (10) TMI 1562 - CESTAT MUMBAI - TMI - Manufacture - Marketability - Intermediate product - Captive consumption - During the manufacture of beer, an intermediate product wort comes into existence and this product is captively consumed by the respondent-assessee. - held that:- No grounds or any evidence brought forward by the Revenue against the above findings of the Tribunal. In the absence of any such evidence, we respectfully follow the earlier order of this Tribunal [2003 (9) TMI 485 - CE .....

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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 appeal before the Commissioner (Appeals) who dropped the demand/confirmed the order of the original authority. Against th .....

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nsequence. Learned AR also submitted the judgment of the Hon ble Madras High Court in the case of Mettur Thermal Power Station vs. CBEC reported in 2015-TIOL-1948-HC-MAD-CX. 4. Learned counsel for the respondent-assessee submitted that this Tribunal in their own case for the earlier period, reported in 2003 (158) ELT 171 (Tri.-Mum.) held in favour of the assessee. It was further submitted that no new grounds have been made in the appeal and in fact the Commissioner (Appeals) has dropped the dema .....

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se 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 .....

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ermediate product, establishing its marketability is essential. The Apex Court in the case of Cadila Laboratories Pvt. Ltd., v. CCE, Vadodara [2003 (152) E.L.T. 262 (S.C.)] had held that the burden of proof of marketability of an intermediate product, is to be discharged by the Department. Orders passed on the basis that the subject goods conceivably sold cannot be sustained as in the present case. (b) It is found that the Commissioner has found as regards the salability as follows : As per sa .....

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diate goods captively consumed has been well settled since the case of UOI v. Delhi Cloth & General 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 ca .....

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rsion of PVC resin into PVC compound by the process employed by the appellants amounted to manufacture, within the meaning of Section 2(f) of the Act by itself will justify the levy of duty was a impalpable error committed by the Tribunal and the matter was remanded back to the Tribunal to consider the appeal afresh. In the cases before us, in absence of any material in the show cause notice to accept the marketability or salability of the product, the matter cannot be remitted back to the learn .....

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td. and Ors. [1977 (1) E.L.T. (J 199)] wherein the Court after considering the fact that excisability of goods is often regulated by law and unless the relevant rules are complied with, the goods could not be exchanged and that may be an additional reason, why WORT may not be goods. In the facts of that case, the marketability of 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, .....

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