2004 (7) TMI 474 - AT - Central Excise

Summary

Issues Involved:
1. Marketability of parts of Under Water/Submarine Batteries (UWB)
2. Eligibility for Notification 217/86
3. Allegations of suppression of manufacture and captive consumption
4. Imposition of penalties and interest

Detailed Analysis:

Issue 1: Marketability of parts of Under Water/Submarine Batteries (UWB)

The appellants argued that the parts of UWB, such as positive plates, negative plates, containers, covers, and pole straps, were manufactured and captively used for the manufacture of UWB and were never supplied to the Indian Navy nor ordered by them. The adjudicator found that these parts were marketable, stating that the parts were supplied to the Indian Navy, indicating a market existed. However, the Tribunal noted that the appellants had submitted there was no instance of any sale to any outside party, and the Department had not provided evidence to show these parts were marketable products. The Tribunal concluded that the adjudicator's findings were based on incorrect material, and no evidence existed to indicate sale/purchase transactions of UWB parts.

Issue 2: Eligibility for Notification 217/86

A show cause notice was issued demanding duty, alleging that the benefit of Notification 217/86 was not available since the final product (UWB) was cleared at NIL rates of duty. The Tribunal found that the parts manufactured by the appellants were made to specific designs and secret specifications for the Indian Navy, not known in the open market. The Tribunal relied on the Supreme Court's decision in Union of India v. Sonic Electrochem (P) Ltd., which held that the essence of marketability is the commercial identity of the articles known to the market for being bought and sold. Since the UWB parts were not commercially known products, they were not considered 'goods' under excise law, making the duty levy inapplicable.

Issue 3: Allegations of suppression of manufacture and captive consumption

The show cause notice alleged suppression of manufacture and captive consumption of parts to invoke demands. The Tribunal found that the parts in question were procured and processed to fit the UWB, and no evidence existed to show these parts were manufactured in the appellant's premises. The Tribunal concluded that the activity of procuring parts did not bring the levy on these parts under Section 3 of the Central Excise Act, 1944.

Issue 4: Imposition of penalties and interest

Given that no levy was found to be attracted on the entities as enumerated in the show cause notice, the Tribunal determined that the demands, penalties, and interest were not upheld. Consequently, the appeal was allowed, and the order imposing penalties and interest was set aside.

Conclusion:

The Tribunal concluded that the parts of UWB were not marketable goods as known in the open market and were not subject to excise duty. The appeal was allowed, and the demands, penalties, and interest were set aside.