TMI Blog2018 (12) TMI 1469X X X X Extracts X X X X X X X X Extracts X X X X ..... sold by them and they have paid duty on the actual transaction value in respect of these sale. Once having accepted that the goods were marketed by them the appellants could have not claimed in any subsequent proceedings that department has not established the marketability of the said goods or classification of the same. Since the appellants have paid the duty on the actual quantum and the value of clearances there cannot be any further demand on the basis of imaginary or hypothetical figures - Further with effect from 1st July 2000, with the introduction of transaction value concept in Section 4 of the Central Excise Act, 1944, duty has to be determined on the basis of actual transaction value and not on the basis of any “contemporaneous value” as has been held by the Commissioner (Appeal). Appeal allowed - decided in favor of appellant. - APPEAL No. E/172/2011 - A/88087/2018 - Dated:- 26-9-2018 - Dr. D.M. Misra, Member (Judicial) And Mr. Sanjiv Srivastava, Member (Technical) Shri S.R. Nair, Advocate, for appellant Shri Deepak S. Chavan, Superintendent (AR), for respondent ORDER Per: Sanjiv Srivastava This appeal is directed against the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course of manufacture on payment of duty. Appellants have worked out the waste generated as 0.2% department contended it to be 1%. Seven Show Cause Notices as detailed below have been issued to them and adjudicated confirming the demand as indicated. Show Cause Notice No Date Period Duty Rs C.Ex R-III/VML/SCN/2002 29.04.2004 Apr03 Dec03 4679.56 C.Ex R-III/VML/SCN/2002 02.12.2004 Jan04- Sep04 3052.71 C.Ex R-III /W-1/VML/SCN/2002 10.06.2005 Oct04- Mar05 1837.24 C.Ex R-III /W-1/VML/SCN/2002 25.04.2006 Apr05- Mar06 4971.85 C.Ex R-III /W-1/VML/SCN/2002 16.04.2007 Apr06- Mar07 5351.06 C.Ex R-III /W-1/VML/SCN/2002 02.05.2008 Oct07- Mar08 3385.62 C.Ex R-III /W-1/VML/SCN/2002 31.01.2009 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he quantum of waste generated was only 0.027% as calculated by the Range Superintendent under the directions of the Assistant Commissioner and hence in any case duty cannot be demanded on quantum in excess of the same. v. In this case no interest and penalty can be imposed. 4.3 Learned Authorized representative reiterated the findings in the order of Commissioner (Appeal) and asked for the dismissal of appeal. 5.1 We have considered the submissions made on behalf f Appellants and Revenue. This is unique case where the revenue has issue the notice claiming that the total waste generated, is much higher than the waste as claimed o be generated by the assessee. It is not the case of the department that total of finished products and waste generated is not in accordance with the raw material received and consumed by them. In case if there was any difference, then why should duty not be demanded on the finished good. However department has alleged short accountal of waste and demanded duty on the same. Up till now department has been questioning the quantum of waste generation to be in excess of the prescribed norms, but in the present case the department has challenged that wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said product (starch hydrolysate), the court came to the conclusion that it would be unlikely to be marketable as it was highly unstable. The test, therefore, is the marketability ; this test has to be applied and the matter decided in a pragmatic and practical sense. 10. It would be evident from the facts and ratio of the above decisions that the goods in each case were found to be not marketable. Whether it is refined oil (non-deodorised) concerned in Delhi Cloth and General Mills, or kiln gas in South Bihar Sugar Mills, or aluminium cans with rough uneven surface in Union Carbide, or PVC films in Bhor Industries or hydrolysate in Ambalal Sarabhai, the finding in each case on the basis of the material before the court was that the articles in question were not marketable and were not known to the market as such. The marketability is thus essentially a question of fact to be decided in the facts of each case. There can be no generalisation. The fact that the goods are not in fact marketed is of no relevance. So long as the goods are marketable, they are goods for the purposes of Section 3. It is not also necessary that the goods in question should be generally availa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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