2011 (6) TMI 597 - AT - Central Excise

Excisability - demand of duty - intermediate product - captively consumed marketability polystyrene sheets arising in the course of manufacture of the final products - Held that - Since marketability of the intermediate product has to be determined first and, thereafter, its excisability, the matter is remanded to the original authority to give a considered finding on the issue after giving a reasonable opportunity to the appellants to present their case. appeal is allowed by way of remand

Summary

Issues Involved:
Classification of intermediate product for duty payment, Marketability of intermediate product, Burden of proof on marketability, Jurisdiction of Tribunal to examine legal questions raised for the first time.

Classification of intermediate product for duty payment:
The appeal challenged the duty demand on polystyrene sheets used in manufacturing plastic articles. The appellants argued that since they procured duty paid inputs and did not avail modvat credit, they were entitled to duty exemption under Notification No. 14/92-CE. The authorities claimed the polystyrene sheets were classifiable under a different sub-heading and chargeable to duty. The appellate authority rejected the appeal, stating that the issue of non-marketability was not raised earlier. The appellant relied on legal precedents to support their claim that duty exemption for final products should extend to intermediate products.

Marketability of intermediate product:
The key contention was whether the polystyrene sheets in crude form, arising at the intermediate stage, were marketable and thus liable to duty. The appellant argued that the burden to prove marketability rested with the Revenue, citing a Supreme Court judgment. They emphasized that the department failed to establish the marketability of the intermediate product, rendering the demand unsustainable in law. The Tribunal held that marketability of the intermediate product is crucial for tax liability and remanded the matter to determine marketability before assessing excisability.

Burden of proof on marketability:
The appellant contended that the burden to prove marketability of the intermediate product captively consumed lay with the Revenue. They referenced legal precedents to support their argument that the department's failure to prove marketability rendered the demand legally unsustainable. The Tribunal agreed, emphasizing that marketability is both a question of fact and law with implications for tax liability.

Jurisdiction of Tribunal to examine legal questions raised for the first time:
The appellant argued that the Tribunal had jurisdiction to consider legal questions arising from facts found by lower authorities, even if not raised earlier. They cited legal precedents to support their position. The Tribunal concurred, holding that the issue of marketability raised for the first time before the lower appellate authority should have been considered, rendering the impugned order legally flawed. Consequently, the Tribunal set aside the order and remanded the matter for a fresh determination.

In conclusion, the judgment addressed the classification of intermediate products for duty payment, the requirement to prove marketability for tax liability, the burden of proof on marketability, and the Tribunal's jurisdiction to examine legal questions raised for the first time. The decision emphasized the importance of establishing marketability before assessing excisability and highlighted the Tribunal's authority to consider legal issues raised at later stages of appeal proceedings.