2018 (7) TMI 247 - AT - Central Excise

Manufacture - marketability - Captive consumption - parts of railway wagons manufactured and consumed captively - assessee imported and supplied railway wagons classifiable under Chapter 86 of Central Excise Tariff Act, 1985 to the Indian Railways at Nil rate of duty - Held that - the Tribunal in the case of Texmaco Ltd. Vs. Commr. of Central Excise, Kolkata III 2007 (7) TMI 162 - CESTAT, KOLKATA , has dealt the issue in detail and allowed the assessee s appeal on the ground of marketability - appeal dismissed - decided against Revenue.

Summary

Issues:
- Appeal against Order-in-Original No.24 (De-Novo)/Commr./CE/Kol-III/2009-10
- Applicability of exemption Notification No.60/93-CE dated 28.02.1993
- Duty on parts of railway wagons consumed captively
- Interpretation of marketability for excise duty liability

Analysis:

1. Appeal against Order-in-Original:
The Revenue filed an appeal against Order-in-Original No.24 (De-Novo)/Commr./CE/Kol-III/2009-10 passed by the Commissioner of Central Excise, Kol.III. The case pertained to the period from 01.03.93 to 03.05.93 when the respondent-assessee imported and supplied railway wagons to the Indian Railways at Nil rate of duty under Notification No.60/93-CE dated 28.02.1993.

2. Applicability of Exemption Notification:
The dispute arose as the Revenue contended that parts of railway wagons consumed captively in their manufacture were not covered by the exemption notification. A show-cause notice was issued to recover duty on such parts along with interest and penalty. The adjudicating authority initially dropped the proceedings, leading to the Revenue's appeal before the Tribunal.

3. Duty on Consumed Parts:
The grounds of appeal highlighted discrepancies in considering precedents such as the case of Bharat Wagon & Engineering Co. Ltd. and Texmaco Ltd. The Tribunal analyzed the issue of marketability in detail, emphasizing the need for the Revenue to establish marketability of goods to impose excise duty, as per relevant Supreme Court decisions.

4. Interpretation of Marketability:
Referring to the case of Texmaco Ltd. Vs. Commr. of Central Excise, Kolkata III, the Tribunal emphasized that the impugned goods must be marketable to be subject to excise duty. The decision focused on the concept of marketability and the necessity for goods to have a distinct identity in the market to attract excise duty liability.

5. Judicial Decisions:
The Tribunal's decision was upheld by the Hon'ble Calcutta High Court, which dismissed the Revenue's appeal. The High Court concurred with the Tribunal's findings that the impugned goods were not liable to excise duty due to lack of marketability. Furthermore, the Supreme Court in the case of Cimmco Birla Ltd. Vs. Commr. of Central Excise, Jaipur emphasized the Department's burden to prove marketability of parts used in manufacturing railway wagons.

6. Final Decision:
Based on the discussions and legal precedents, the Tribunal rejected the Revenue's appeal and upheld the impugned order. The decision highlighted the importance of establishing marketability for excise duty liability and concluded that the impugned goods were not subject to excise duty. The judgment was pronounced in open court, sustaining the original order.

This detailed analysis showcases the legal intricacies involved in the judgment, focusing on the interpretation of marketability for excise duty liability in the context of imported railway wagon parts.