2023 (8) TMI 899 - SCH - Central Excise

Incorrect classification - Department was unable to make good its submission - HELD THAT - Particularly in absence of the requisite evidence, the Tribunal ruled in favour of the respondent where it was held that As regards the duty demand on silver residue which is arising during the processing of the film, as per Chapter Note to Chapter 26, silver waste arising in the processing of cinematographic films stands excluded from Chapter 26 and are properly classifiable under Chapter 71 and during the material period, the silver residue was exempt from excise duty. Therefore, the excise duty demand in respect of silver residue also does not sustain. In view of the finding of fact with reference to the evidence, or want of evidence, as recorded by the Tribunal does not lead to any question of law worth consideration in this appeal. Appeal dismissed.

Summary

Issues:
The issues involved in the judgment are the proper classification of goods by the Customs, Excise & Service Tax Appellate Tribunal and the consideration of marketability of chemical preparations used in cine film processing.

Classification Issue:
The appellant contended that the question of classification was not adequately addressed by the Tribunal due to confusion regarding earlier orders by the High Court. The appellant argued that the matter should be remanded to the Tribunal for a proper examination of the classification issue. The High Court's order dated 12.11.2009 indicated that the matter was open for reconsideration, but the Department had already passed an order by 25.08.2009 without considering this aspect. The Tribunal's findings highlighted the failure of the adjudicating authority to independently assess the marketability of the products, which led to a lack of proper classification. The Tribunal emphasized that the chemical preparations in question were not marketed and therefore not exigible to duty.

Marketability Issue:
The Tribunal observed that the Revenue did not provide any evidence to show that the chemical preparations used in cine film processing were marketable. The appellant had not marketed these goods at any point, and expert opinions supported the claim that the preparations were not marketed products. The Tribunal noted that the Department failed to establish the marketability of the goods, despite assertions that similar chemicals were marketed by other entities. A letter from M/s. Kodak India (P) Ltd. confirmed that the chemicals marketed by them were not similar to those produced by the appellant and had a short shelf life, making them non-marketable. Consequently, the Tribunal ruled in favor of the respondent, setting aside the demands confirmed in the impugned orders and exempting the duty demand on silver residue under Chapter 71.

Conclusion:
The Supreme Court dismissed the appeal, stating that the findings of fact by the Tribunal did not raise any significant legal questions for consideration. The appeal was therefore rejected, and all pending applications were disposed of accordingly.