1995 (11) TMI 143 - AT - Central Excise

Summary

Issues:
- Whether Excise duty can be leviable on intermediate products like Mercuric Acetate, Para Chloro Phenyl ISO Valeric Acid, and Chloro synthemic Acid Chloride.
- Whether the items in question were marketed or marketable, thus subject to Excise duty.

Analysis:
The judgment involved two appeals, E/796/92-C by the assessee and E/3102/93-C by the department, concerning the leviability of Excise duty on intermediate products. The items in question were Mercuric Acetate, Para Chloro Phenyl ISO Valeric Acid, and Chloro synthemic Acid Chloride, produced during the manufacture of insecticides, fungicides, weedicides, and pesticides. The Collector concluded that these items were subject to Excise duty based on their presence in technical literature and Drawback Rules. However, the department failed to prove the marketability of the items, as required for Excise duty imposition.

The Collector relied on technical definitions and literature to establish the marketability of the items, such as Mercuric Acetate and Para Chloro Phenyl ISO Valeric Acid. The Collector noted the fixed chemical formula and molecular weight of Mercuric Acetate, as well as its classification as an organic chemical. Similarly, the Para Chloro Phenyl ISO Valeric Acid was identified as an intermediate product in the manufacture of a final product, Fenevalarate, with specific formula and references in technical literature. The third item, Chloro synthemic Acid Chloride, was linked to the manufacturing process of Cyper-Methrin, a technical pesticide, based on employee statements.

The party argued that mere presence in technical literature or Drawback Rules did not prove marketability. Citing legal precedents like Indian Textile Paper Tube Co. v. CCE and Ambalal Sarabhai Enterprise v. CCE, the party contested the department's failure to establish marketability. The Supreme Court's stance on marketability as a prerequisite for Excise duty imposition was emphasized, placing the burden of proof on the department to demonstrate marketability. The department's inability to provide evidence of marketability rendered their case unsubstantiated, leading to the dismissal of their appeal and the allowance of the party's appeal.

In conclusion, the judgment highlighted the essential requirement of marketability for the imposition of Excise duty on goods. The burden of proving marketability lies with the department, as affirmed by legal precedents and the Supreme Court's consistent stance on the matter. The lack of evidence demonstrating marketability led to the dismissal of the department's appeal and the allowance of the party's appeal.