TMI Blog2002 (7) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... ontext, he drew our attention to Para 8 of the impugned order which reads as under :- "8. As regards marketability of the products, it is held by the Hon'ble Tribunal in the case of Dote Printers v. Collector as reported in 1987 (81) E.L.T. 793 (T) that marketability is essential to excisability but actual marketability is not necessary for dutiability. The fact that the PCBs are intermediate products in the manufacture of EVMs is not disputed. Hon'ble Tribunal in the case of Orient Paper Mills v. Union of India as reported in 1983 (14) E.L.T. 1813 (T) held that "for the purpose of dutiability, it is immaterial whether goods are captively consumed or cleared for sale". It has been held in the Bhor Industries' case by the Hon'ble Supreme C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amine the dutiability of goods captively consumed. Prior to 1979 no duty was levied on such goods. But, as stated earlier, after amendment of Rules 9 and 49 captively consumed goods become exigible to duty. The rationale for not treating such goods as excisable was same that since such goods were not brought to the market for buying and selling they could not be subjected to duty. But when the Rules were amended a fiction was created that any article produced or manufactured if captively consumed was statutorily presumed to satisfy the test of marketability. But this presumption can be rebutted if it is established that the article produced and captively consumed was neither goods nor marketable nor capable of being marketed. The duty is at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat ratio of the decisions of the Supreme Court is not applicable to the facts of this case. In that case, the goods do not have shelf life and accordingly the Apex Court has arrived to the conclusion that there is not marketability. 3. We have carefully considered the matter. It is settled position now that marketability is a pre-requisite for excisability. In other words, excisability depends upon marketability. Goods must be marketed or it must be capable of being marketed to attract excise duty. Precisely, this was the view of the Supreme Court in the case referred to above and in a series of cases. Following the same, Tribunal has been consistently taking a view that unless goods are capable of being marketed, the question of levy do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 90 as the case may be or 8542. It is found that the Tribunal in the case of HAL v. CC, Vizag [1998 (104) E.L.T. 355] classified Printed Circuit Boards under 8534 and not under Heading 8473 in view of the Note 2 to Section XVI and Rule 1 of Rules of Interpretation. The Special Bench B-II in the case of Jindal Aluminium Ltd. [1989 (42) E.L.T 268] held that Populated or Unpopulated type of Printed Circuit Boards are classifiable under specific Heading 8542 or 8534 of the Customs Tariff Act, 1975 and not under Heading 8473.30, and held 8542 to be more specific for Populated Circuit Boards. Reading the note and following the Case law in the present case, also, the entity under classification dispute being Populated Circuit Boards for Electron ..... X X X X Extracts X X X X X X X X Extracts X X X X
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