2010 (5) TMI 280 - AT - Central Excise

Stay Excisability - The appellants challenge the order passed by the lower authority on the ground that, the product in question is not marketable and, therefore, is not excisable mainly on two grounds - firstly, the product is exclusively meant for use thereof by one of the units of the appellants situated at Mysore, though the product as such is manufactured in their own unit at Bangalore, and secondly, that the Board Circular No. 495/61/99-CX. 3, dated 22-11-1999 clearly excludes the product in question from being marketable and excisable one. Held that- ground of limitation partly in favour of appellants. Prima facie case made out for grant of waiver of 60% of demand of duty.

Summary

Issues:
Challenge to order on grounds of product marketability and excisability, interpretation of Board Circular No. 495/61/99-CX.3, defense against show cause notice, waiver of duty amount, limitation period, penalty imposition justification.

Analysis:
The appellants contested the lower authority's order, arguing that the product in question, an Agarbathi Perfumery compound exclusively used by their Mysore unit, was not marketable or excisable. They relied on Board Circular No. 495/61/99-CX.3, which exempts odoriferous compounds not capable of being bought or sold in the market from excise duty. The appellants claimed their product was not sold in the market but used internally for further production, emphasizing the secrecy of their formulations. However, the Tribunal found it difficult to accept this argument, distinguishing between a product exclusively used by the assessee and one incapable of being bought or sold in the market. The Tribunal noted the absence of clear evidence supporting the claim that the product was exclusively used for internal purposes, casting doubt on the appellants' contentions.

Regarding the waiver of duty amount, the Tribunal acknowledged that a prima facie case for total waiver was not established. However, considering the circumstances, a 60% waiver of the duty demand was granted. The Tribunal also addressed the issue of limitation, finding that the period prior to November 2007 was barred by limitation due to previous show cause notices. Consequently, the Tribunal directed the appellants to deposit 40% of the duty demanded within eight weeks, waiving the rest until the appeal's disposal. The Tribunal deemed the insistence on penalty deposit unjustified, leading to the partial success of the appellants' application.

In conclusion, the Tribunal's decision partially favored the appellants by granting a partial waiver of duty amount, addressing the limitation period issue, and rejecting the imposition of the penalty. The judgment highlighted the importance of clear evidence and legal interpretation in determining excisability and marketability of products, emphasizing the need for a factual basis to support claims in such cases.