TMI Blog1996 (8) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... e no attempt to disprove the evidence led by the assessees in those matters and this and establish by evidence of their own that the recovered caprolactam was marketable, there is no reason why they should now be given a second opportunity to do so by an order of remand. Thus the appeals are allowed. The judgments and orders of the Tribunal under appeal are set aside and it is held that the recovered caprolactam is not excisable to excise duty. - 4173-74 of 1984 - - - Dated:- 13-8-1996 - S.P. Bharucha and S.B. Majmudar, JJ. [Judgment per : Bharucha, J.]. - The appellants manufacture nylon yarn using a raw material known as caprolactam. The raw material is subjected to polymerisation. This is a reversible process. After polymer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant drew our attention to the subsequent judgments of the Tribunal in Jagatjit Cotton Textile Mills Ltd. v. Collector of Central Excise - 1990 (50) E.L.T. 379, and L.M.L. Ltd. v. Collector of Central Excise - 1992 (59) E.L.T. 82. In both cases the Tribunal was concerned with facts identical to those involved in the appeals before us and, very rightly, recognised the importance of the marketability of the product for the purpose of levy of excise duty. The order of the Collector which was in appeal before the Tribunal in the case of Jagatjit Cotton Textile Mills Ltd. had followed the Tribunal's decision which is in appeal before us. In the case of L.M.L. Ltd. counsel on behalf of the Excise authorities had cited to the Tribunal its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of Collector of Central Excise v. Ambalal Sarabhai Enterprises, reported in 1989 (43) E.L.T. 214 (S.C.), wherein it was observed that test of marketability should be satisfied even in respect of transient item which is captively consumed in the manufacture of other finished product and in particular it held that marketability is an essential ingredient in order to be dutiable under the Schedule to the Central Excise Tariff Act. Simply because certain articles fall within the Schedule it would not be dutiable under the Excise Law if the said article is not `goods' known to the market. It has also been held that though actual sale is not necessary, the evidence must be produced by the Department that the goods in fact are capable of being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmission, therefore, the matter should be remanded for ascertaining the factual position. 8.Learned counsel for the respondents had not been instructed about the Tribunal's decisions in the Jagatjit and L.M.L. cases and could not refute the submissions that they had been accepted by the Excise authorities. 9.The Tribunal in the two subsequent decisions in Jagatjit L.M.L. found as a fact that the recovered caprolactam was not a saleable commodity upon the basis of the assessee's evidence and the failure of the Excise authorities to prove the contrary. The Excise authorities having made no attempt to disprove the evidence led by the assessees in those matters and this and establish by evidence of their own that the recovered caprolactam ..... X X X X Extracts X X X X X X X X Extracts X X X X
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