2006 (3) TMI 22 - AT - Central Excise

Central Excise Packaging Plastic container in fanciful shape used for filling the jelly based product Impugned goods neither a standard item nor generally marketed - Variety of container known commercially to market

Summary

Issues:
1. Classification of the product as a container for jelly-based products.
2. Determination of marketability and liability to duty based on the nature of the product.

Analysis:
1. The appeal challenged the order of the Commissioner (Appeals) regarding the classification of the product in dispute as packing materials for jelly-based products. The Commissioner (Appeals) observed that the product did not emerge in the integrated process of manufacturing jelly-based products and was akin to containers used for packing the jelly products. The Tribunal examined a sample of the product, described as resembling a toy that can contain jelly-based products. It was noted that the product was designed attractively, resembling toys, to market jelly products effectively, especially to children. The Tribunal concluded that the product was indeed a container in various forms resembling toys for marketing jelly-based products.

2. The learned counsel cited judicial precedents to argue that the product was not a standard item and not generally marketed, thus not liable to duty. The judgments referred to emphasized that marketability is not solely based on actual sales but on the capability of being sold or known in the market as goods. The Judicial Member relied on the decision of the Apex Court in a previous case, highlighting that marketability is a factual determination specific to each case. The fact that the goods are not currently marketed does not negate their marketability. The product in question, despite being distinct from ordinary containers, was deemed marketable as it was capable of being bought and sold. The Tribunal found that the product, being a type of container, was commercially known and purchasable, similar to containers purchased by the appellants themselves.

In conclusion, after considering the arguments, examining the product sample, and reviewing relevant legal principles, the Tribunal upheld the Commissioner (Appeals) order. The product in dispute was classified as a fancy container resembling various shapes like bears or mobile phones, specifically used for jelly-based sweetmeats for children. The Tribunal affirmed that the product's marketability was established based on commercial identity in the market, despite its unique shape. As the product was deemed a type of container, capable of being bought and sold, the appeal was dismissed, finding no grounds for interference with the impugned order.