TMI Blog2015 (12) TMI 322X X X X Extracts X X X X X X X X Extracts X X X X ..... etable and therefore the burden of proving that goods is marketable has not been discharged by the Revenue. - under similar facts, in the case of Metro Tyres Ltd [2002 (11) TMI 384 - CEGAT, NEW DELHI] and Cipla Ltd.(2008 (3) TMI 330 - SUPREME COURT OF INDIA) this issue has been considered and was held that merely if movement of goods from one factory to another factory has taken place and the goods were used for captively the said reason can not be material factor to hold that the goods is marketable. - Decided against Revenue. - Appeal No. E/25/05 - - - Dated:- 21-1-2015 - Mr. P.K. Jain, Member (Technical) And Mr. Ramesh Nair, Member (Judicial) For the Petitioner : Shri. N.N. Prabhudesai, Superintendent(A.R.) For the Respondent : Shri. Prasad Paranjape, Advocate ORDER Per : Ramesh Nair The Appeal is directed against Order-in- Appeal No. BPS(332) 107 108/2004 dtd. 20/9/2008 passed by the Commissioner of Central Excise Customs (Appeals), Aurangabad, wherein Ld. Commissioner(Appeals) set aside the order of the original authority and allowed the Appeal of the respondent. The facts of the case is that the respondent, manufacturer M/s. Balkrishna Tyres Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) [1994(70) ELT 3(SC)] A. P. Stare Electricity Board Vs. CCE (c) [2004(166) ELT 145(SC)] CCE Vs. Hindustan Zinc Ltd. (d) [2004(166) ELT 433(SC)] T. N. State Electricity Corpn. Ltd. Vs. CCE (e) [2009(236)ELT268(Tri.Bang)] CCE Vs. MRF Ltd. (f) [2008(232)ELT 260(Tri.Mum) CEAT Ltd. Vs. CCE (g) 2010(251)ELT A56(Kar.) J.K. Tyre Industries Vs. Commissioner (h) [2012(279)ELT 152(Tri-Mum)] Garware Marine Industries ltd. Vs. CCE (h) [2010 (260) ELT 338(SC) Nicholas Piramal India ltd. Vs. CCE Mumbai He also relied upon the Board Circular No. 566/3/2001-CX dated 22/1/2001. He also submits that the rubber tread compound was also manufactured by job worker on behalf of the appellant since it is independently manufactured in some other unit and brought back to the appellants factory this shows that it is distinct product and therefore marketable. 3. On the other hand, Shri. Prasad Paranjape, Ld. Counsel for the respondent reiterating the finding of the Commissioner s (Appeals) order submits that the Revenue at any point of time could not bring any evidence to prove their contention of marketability of the both the products. It is his subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court in the case of [2008(225) ELT 403(SC)] Cipla Ltd Vs. CCE, Bangalore, wherein Hon ble Apex Court held that merely transfer of goods by assessee from his factory at Bangalore to his own unit at Patalganga for manufacture of final product has not shown the product was either marketed or was marketable. He also placed reliance on various judgments as cited below: (a) [1999(107) ELT 41(Tri)] Everest Rubber Works Vs. CCE, Culcutta-II (b) [2003(152) ELT 262(SC)] Candila Laboratories Pvt. Ltd. Vs. CCE, Vadodra (c) 2003(153) ELT 491(SC)] CCE, Chandigarh -! Vs. Markfed Vanaspati allied Indus (d) [1990(46) ELT 240(Kar)] Cipla Ltd. VS. UOI (e) [2005-TIOL-165-SC-CS-LB] CCE, Chandigarh Vs. Metro Tyres Ltd. 4. We have carefully considered the submissions made by both the sides and perused the record. 5. The issue in the present case for our consideration is whether the goods namely rubberized tyre cord fabric and rubber tread compound manufactured and consumed captively are marketable and consequently dutiable or otherwise. As regard rubberized tyre cord fabric, it is observed that demand was raised classifying the said product under Chapter he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court judgment the demand of duty on rubberized tyre cord fabric is not sustainable. As per the various Honble Supreme Court judgment cited by the Ld Counsel for the respondent, to hold the goods as marketable, the burden is on the Revenue to prove that the goods in question is marketable. In the present case the department has not produced any evidence to prove that goods in question are marketable. For this reason also the contention of the Revenue regarding marketability is not acceptable. As regard the product namely rubberized tread compound the department has failed to bring any evidence to prove that the subject goods manufactured and consumed captively by the respondent is marketable and therefore the burden of proving that goods is marketable has not been discharged by the Revenue. Therefore, following ratio of various Honble Supreme Court judgment cited by the respondent it cannot be held that the goods is marketable in absence of any evidences. The Product, rubber tread compound has been claimed by the respondent that it has short self-life, being only product having short self-life cannot be sold to any other manufacturer. So considering the nature of the good ..... X X X X Extracts X X X X X X X X Extracts X X X X
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