2008 (6) TMI 140 - AT - Central Excise

Marketability and Dutiability of impregnated hessian cloth - hessian cloth are used in wrapping wires and cables for securing its life and utility - marketability of any good (hessian cloth) cannot be decided on basis of its availability in the market - true test to decide marketability is whether the goods are marketable and not whether it is available in the market - as the dispute relates to classification, notwithstanding the revenue involved, there is no option but to remand the case

Summary

Issues:
Classification of impregnated hessian cloth for excise duty.

Analysis:
The appellant, engaged in manufacturing insulated wires and cables, used impregnated proofing tape coated with bitumen as a component for securing the wires and cables. The dispute arose when the Revenue alleged non-payment of duty on impregnated hessian cloth and the failure to submit price and classification lists. The Assistant Commissioner accepted the appellant's argument that the hessian cloth was not excisable. However, the Commissioner (Appeals) overturned this decision based on a report claiming the hessian cloth had market value due to its shelf-life.

The appellant argued that shelf-life should not determine excisability, citing a Supreme Court case. They contended that marketability, not shelf-life, is the true test for excisability. The appellant emphasized that hessian tape was not marketable on its own and was only used for specific purposes, therefore not qualifying as excisable goods. The Tribunal agreed that shelf-life should not be the test for excisability, emphasizing that marketability is the key factor. They noted the lack of evidence on marketability in the records and criticized the reliance on a questionable report by the Range Superintendent.

The Tribunal highlighted previous court decisions emphasizing that marketability is a question of fact, not dependent on actual sales or the number of buyers. They cited a case where even a single buyer could establish marketability. Due to the lack of evidence on marketability, the Tribunal decided to remand the case to the original authority for further evidence and a proper finding. Despite concerns about the financial burden of a de novo adjudication on the appellant, the Tribunal stressed the importance of resolving the classification issue and the necessity of remanding the case for a comprehensive decision.

In conclusion, the Tribunal set aside the previous orders and remitted the matter back to the original authority for a fresh adjudication, emphasizing the need for evidence on marketability to determine the excisability of the impregnated hessian cloth used in manufacturing insulated wires and cables.