TMI Blog2015 (5) TMI 1009X X X X Extracts X X X X X X X X Extracts X X X X ..... Representative relied the decision of Hon’ble Supreme Court in the case of A.P. Electricity Board (1994 (2) TMI 56 - SUPREME COURT OF INDIA ) wherein held that the marketability of the article does not depend upon the number of purchasers nor is the market confined to territorial limits of the country. In the present case, we do not find any material that the structures constructed by the appellant for the purpose of construction of the jetty is commercially known as similar to pontoons in any market. In view of the above discussion, we find that the demand of duty along with interest and penalty cannot be sustained. - Decided in favour of assessee - E/658/2007 - Final Order No. A/10505/2015/WZB/AHD - Dated:- 6-5-2015 - Shri P.K. Das ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules, 1944. The appellants filed an appeal before the Commissioner (Appeals). By the impugned order, the Commissioner (Appeals) rejected the appeal. 2. The learned Advocate appearing on behalf of the appellant contested the demand of duty on two counts mainly the fabricated items cannot be classifiable under sub-heading No. 89.01 of the Schedule to the Central Excise Tariff Act, 1985. The other ground is that the Revenue failed to establish the marketability of the temporary structures, for construction of the jetty. He relied upon the various decisions and filed a compilation of case laws. It has also contended that the demand is barred by limitation. 3. On the other hand, the learned Authorised Representative for the Revenue submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... coffer-dams, landing-stages, buoys and beacons). The Note to Heading 89.07 of HSN provides pontoons of the hollow cylinder type used for the support of temporary bridges, etc. But pontoons having the character of vessels are excluded. 5. We find that there is no dispute on the fact that the appellant constructed the temporary structures for the purpose of construction of jetty. They have opposed the demand that the goods are not marketable and hence not excisable. The adjudicating authority observed that the marketability is to be seen from the product is capable of being marketed/sold. The adjudicating authority relied on the decision of the Tribunal in the case of Gujarat Narmada Valley Fertilizer Co. Ltd. v. Commissioner of Central Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f EMR. Each is having a different plastic body to suit its design and requirement. If one goes to the market to purchase the plastic body of EMR of the respondents either for replacement or otherwise one cannot get it in the market because at present it is not a commercially known product. For these reasons, the plastic body, which is a part of EMR of the respondents, is not goods so as to be liable to duty as parts of EMR under para 5(f) of the said exemption notification. 6. This passage would clearly show the level at which the marketability has to be established. 7. The onus was on the Revenue. The only piece of evidence which has been produced by the Revenue was a test report which merely stated that the sample showed that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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. 7. On perusal of the aforesaid decision, we find that the Hon ble Supreme Court consistently viewed that the onus lies with the Revenue in respect of the marketability of the product. It has also observed that the marketability cannot be established on the basis of mere sale of goods. It requires su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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