1995 (9) TMI 83 - SC - Central Excise

Marketability of Burner Fuel Oil captively consumed by the appellant for heating purposes in its own refinery - Held that - Fuel oils can solidify under storage conditions and therefore it is usual to specify a pour point for the oil. The fact that it has to be kept under certain temperatures to remain in liquid form contends Counsel for the Revenue does not make it other than fuel oil. But even from these notes we find that fuel oil or furnace oil consists of residues which are primarily used in steam boilers in power and industrial plants and are distinguished from commercial fuel oils which are usually blended with other petroleum fractions. The question is one of fact and from what is stated in the affidavit filed on behalf of the appellant we are inclined to think that the Revenue has not been able to show that the residue is marketable as understood in the decisions referred to hereinbefore. Appeal allowed.

Summary

Issues:
Marketability of Burner Fuel Oil captively consumed by the appellant for heating purposes in its own refinery.

Detailed Analysis:

Issue: Marketability of Burner Fuel Oil
The Supreme Court noted that the High Court did not specifically address the marketability of Burner Fuel Oil consumed by the appellant for heating purposes in its refinery, as urged by the appellant. The Court observed that the High Court's judgment was from 1972 and decided to examine the marketability issue itself. The appellant submitted an affidavit stating that the residue left after processing crude oil in the refinery was a waste material with high viscosity, unsuitable for direct use as fuel without further processing. The appellant argued that this residue, termed Burner Fuel Oil, was not marketable without additional processing and blending with low viscosity stock like diesel.

The Court referenced previous cases to define marketability as the capability of an article to be sold or sold to consumers in the market without further processing. Applying this definition to the appellant's affidavit, the Court concluded that the residue, in its current state, did not meet the marketability test. The Revenue argued that the residue qualified as fuel oil based on encyclopedic definitions, emphasizing that fuel oil can solidify under certain conditions but remains classified as fuel oil. However, the Court found that the Revenue failed to demonstrate that the residue met the marketability standard established in previous decisions.

In light of the above analysis, the Supreme Court allowed the appeal, overturned the impugned order, and directed that consequential benefits be granted according to the law. No costs were awarded in this matter.