TMI Blog2008 (3) TMI 330X X X X Extracts X X X X X X X X Extracts X X X X ..... nst revenue. - 5793 of 2002 - - - Dated:- 26-3-2008 - Ashok Bhan and Dalveer Bhandari, JJ. [Order]. - This is a statutory appeal filed by the assessee under Section 35L(b) of the Central Excise Act, 1944 (for short, 'the Act') against the final order No. 698/2002 dated 31st May 2002 in Appeal No. E/906/99 passed by the Customs, Excise and Gold (Control) Appellate Tribunal, South Zonal Bench at Bangalore (for short 'the Tribunal'). By this order the Tribunal has rejected the appeal filed by the appellant and has held that Benzyl Methyl Salicylate (for short 'BMS') is marketable and therefore liable to excise duty. 2. The appellant-company is engaged in the manufacture of patent and proprietary medicines and organic chemicals (bul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the product in question was held to be excisable and on appeal before a Division Bench of the High Court, the matter was remanded back to the Assistant Collector for passing a detailed order on the question whether the goods were excisable or not after affording due opportunity to the parties to lead their evidence. Pursuant to the said order, the appellant submitted detailed letters dated 16-3-1992 and 3-4-1992. 6. The Assistant Collector passed a fresh order dated 21-4-1992/23-4-1992 wherein he examined the issue in detail and after referring to the various decisions of this Court on the issue of marketability held that the enquiries made by the Revenue to ascertain the marketability of BMS had not yielded any tangible results and tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant, dissatisfied by the aforesaid order, filed an appeal before the Tribunal. The case came up for hearing before a two-member Bench of the Tribunal. There was a difference of opinion between the two members. Member (Technical) upheld the view taken by the Commissioner (Appeals) and held that the product in question was marketable whereas the Member (Judicial) took a contrary view and held that the goods were not marketable. It was also held by the Member (Judicial) that the Revenue had failed to adduce any evidence to show that the product in question was marketed or marketable. In view of the difference of opinion, the matter was referred to a third member to resolve the issue. The third member agreed with the view taken by the M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right in observing that BMS being used in the manufacture of final product, i.e., Salbutamol Sulphate was neither marketed nor marketable and was only an intermediate product. 11. Since marketability is an essential ingredient to hold that a product is dutiable or exigible, it was for the Revenue to prove that the product was marketable or was capable of being marketed. Manufacturing activity, by itself, does not prove the marketability. The product produced must be a distinct commodity known in the common parlance to the commercial community for the purpose of buying and selling. Since there is no evidence of either buying or selling in the present case, it cannot be held that the product in question was marketable or was capable of bein ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
