9911796707
TMI Blog2000 (11) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... fect from March 1, 1979 under item 23-A(4) (hereinafter this appeal will be referred to as the main appeal). 3.In the connected Civil Appeal No. 7114/2000 (arising out of SLP (C) 7908/85) which is from the order of the High Court of Bombay in Writ Petition No. 5095/84 dated January 25, 1985, the question is whether demand of duty without being preceded by a show cause notice, is sustainable in law (hereinafter this appeal will be referred to as the connected appeal). 4.Since the result of the connected appeal depends upon the decision in the main appeal, we shall deal with and advert to the facts giving rise to it. 5.The appellant is a manufacturer of 'glass wool' and 'glass staple fibre'. The raw material used for those goods are Silica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alidity of the notice in Writ Petition No. 5095/84 filed before the High Court of Bombay. The High Court dismissed the writ petition on 25-1-1985. That order is challenged in the connected appeal. 8.Mr. Sanjiv Sen, learned Counsel for the appellant, has contended that 'glass lumps' are merely by-products, they are not known in the market by the same name and are not marketable goods, therefore they cannot be treated as excisable goods. The learned Additional Solicitor General, on the other hand, has argued that the appellant is the sole manufacturer of 'glass lumps' which are captively consumed in the manufacture of the end products; in a case as here where there is no other person in the country who would purchase the same, the test of ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore neither Carbon Dioxide nor compressed Carbon Dioxide as such known to commercial community and therefore could not attract item 14-H of the First Schedule. 11.On the basis of the following observation :- "...at the same time the duty being on manufacture and not on sale the mere fact that kiln gas generated by these concerned is not actually sold would not make any difference if what they generate and use in their manufacturing process is carbon dioxide." it is difficult to accept the contention of the learned additional Solicitor General that for levying excise duty the test of marketability in respect of the 'glass lumps' need not be established as the manufacture and the utilisation of the goods cannot be disputed. 12.The sco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l not make any difference because the test of marketability will be satisfied so long as goods are available for purchases. There it was contended that the electric poles which were manufactured by the independent contractors, were being sold to the Kerala State Electricity Board and it was the only one purchaser so there was no marketability. Negativing the contention, the principle that for goods to attract excise duty, they must satisfy the test of marketability, was reiterated and after referring to the aforementioned judgments it was held that no excise duty could be levied on goods which have been produced or manufactured but was not marketed or capable of being marketing and that even if there was only one purchaser of the goods it m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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