TMI Blog2016 (12) TMI 224X X X X Extracts X X X X X X X X Extracts X X X X ..... f being marketed. The actual sale of such product need not be established in each case. In this connection, reference can be made to the decision of the Hon ble Supreme Court in Cadila Labs. Pvt. Ltd. [2003 (2) TMI 65 - SUPREME COURT OF INDIA]. In the present case, it has been clearly shown that the product has been actually transported by road by the appellant on payment of duty for being used several kms away for the manufacture of excisable goods. This will indicate that the product will not be only classifiable as distinct commodity but is also capable of being transported by the road long distance and capable of being bought and sold. Regarding appellant's claim for exemption of Additional Excise Duty under Notification no.67/95-CE, we note that the said notification grants exemption only for basic excise duty i.e. duty of excise specified in the schedule to the Central Excise Tariff Act, 1985. This issue has been examined by the Original Authority, who noted that the Board vide Circular dated 22.01.2001 categorically clarified that the classification of Tyre Cord Warp Sheet is covered under Heading No.5902 on which AED is leviable from 16.03.1995 to 01.06.1998. The appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facture of nylon tyres liable to central excise duty. They were availing modvat credit facility under erstwhile Rule 57A of the Central Excise Rules, 1944. They were also engaged in the manufacture of dipped rubberized cord fibre of high density nylon yarn in the factory, which is captively used in the manufacture of nylon tyres. The dispute is relating to classification and duty liability of the said dipped rubberized fabrics . The appellants claimed exemption under notification no.67/95-CE dated 16.03.95 for captively consumed goods. The dispute of classification is between the Central Excise Tariff Heading 5902 and 5906. Notification No.67/95-CE allowed exemption for dipped fabrics from whole of basic excise duty when used for the manufacture of final dutiable products. Since the appellants are using Dipped Rubberized Fabrics captively in the manufacture of Nylon Tyres, they are entitled to avail such exemption. However, no exemption is available from payment of Additional Excise Duty leviable under Additional Duties of Excise (Goods of Special Importance) Act, 1956 on such captive consumption. 3. The Revenue initiated proceedings by issuing various demand notices to recover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y did not consider in detail the judgement in the case of MRF Ltd. 2005 (180) ELT 145 (SC); (B) Excise duty cannot be demanded as no manufacture is involved in producing the impugned goods and the said goods are not at all marketable. The Dipped Rubberized Tyre Cord Fabric is an intermediate product that emerges and is consumed in continuous manufacturing process of rubber tyres. The goods do not have any shelf life and have to be subjected to the processing immediately. As such, the product cannot be considered as marketable. The product is sticky and cannot be kept for any considerable amount of time. There is no new product satisfying the criteria for manufacture. In other words, the Tyre Cord Fabric remains Tyre Cord Fabric and there is no change in its character or use in the said process; (C ) The goods merit classification under CETH 5906 and the Commissioner has erroneously classified the product under CETH 5902; (D) Without prejudice to the above, exemption was rightly available for Additional Duty of Excise under Notification No.67/95. The wordings of the notification should be read as applicable to the Additional Duty of Excise also as the provisions of Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argument, ld. Counsel for the appellant submitted that the impugned products are not having shelf life and cannot be considered as marketable for levy of excise duty. We find that, admittedly, the appellants themselves were clearing the said product to their own plant at Kankroli as declared by them to the Department. We note that there is no common or uniform standard to determine the marketability of any given product. 10. In the present case, it is noted that the product is having shelf life and is also being transported as evidenced from the appellant s own declarations. The length of the shelf life is immaterial as long as it can be established that the product has got identify and is capable of being marketed. The actual sale of such product need not be established in each case. In this connection, reference can be made to the decision of the Hon ble Supreme Court in Cadila Labs. Pvt. Ltd. 2003 (152) ELT 262 (SC). In the present case, it has been clearly shown that the product has been actually transported by road by the appellant on payment of duty for being used several kms away for the manufacture of excisable goods. This will indicate that the product will not be only ..... X X X X Extracts X X X X X X X X Extracts X X X X
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