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TMI Blog1995 (1) TMI 186X X X X Extracts X X X X X X X X Extracts X X X X ..... as excisable goods and paying the duty on the same. Subsequently, however, they claimed that the recovered DMT is not excisable since it is not goods and not marketable. The appellants had contended that they were not manufacturing DMT but were only recovering it by way of recycling of waste and such recovered DMT in molten form cannot be bought and sold in the market because the said DMT had no shelf life. The ld. Collector merely has upheld the original authorities finding on this aspect. They had taken a view that the process adopted by the appellants amounted to manufacture and is covered under Section 2(f) of the Central Excises Salt Act, 1944 and that there is no distinction between `recovered DMT and `Virgin DMT in the Tariff sub-heading 2917.10. The further contention of the appellant that recovered DMT is different from the DMT covered under the tariff sub-heading 2917.10, inasmuch as that the recovered DMT in molten form cannot be allowed to cool down and cannot be stored, and hence not marketable, has also not found favour with the ld. Collector. 2. The ld. Collector has held that the products are having the same characteristics and end-use as DMT covered under su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lied before us. The Counsel also relied on the ruling rendered in the case of Jagatjit Cotton Textiles Mills Ltd. v. Collector of Central Excise, as reported in 1990 (50) E.L.T. 379. 4. Ld. SDR submitted that the department has proceeded on the admission of the appellant s themselves regarding the item being goods and their filing classification list. Ld. SDR could not answer to a query, as to whether the order of Asstt. Collector is in consequence of filing of classification list, which had been approved provisionally or that there existed already an approved classification list. The ld. SDR submitted that marketability can be presumed on the basis of facts of this case and such a presumption has indeed been raised in the case of Shalimar Paints Ltd. v. CCE, as reported in 1994 (70) E.L.T. 567, Union of India v. Bata India Ltd., as reported in 1993 (68) E.L.T. 756 and in A.P. State Electricity Board v. CCE, as reported in 1994 (70) E.L.T. 3 (S.C.). 5. We have carefully considered the submissions made by both the sides and perused the orders of the lower authorities. In order to determine the question before us, it is necessary to examine the nature of the product before us. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the recovered DMT has no shelf life and cannot be bought and sold in the market. At this stage, we have to observe that the department has not contested these pleas of the appellants but however, they proceeded on the assumption that as it is utilised by them in manufacture of fibre, the marketability of the product is said to have been established. The certificate issued by the Indian Institute of Technology is reproduced herein : I hereby certify that the dimethyl terephthalate (DMT) recovered from the hethanolysis of polyester waste is inferior in quality due to the presence of some impurities because of the inherent characteristics of the process of recovery. The said DMT is produced in the molten stage and subsequently utilised for the manufacture of polyester fibre of inferior quality and slightly yellowish in colour. The DMT in the molten stage cannot be marketed in the country, and at present none of the industries is engaged in such an activity in India. This statement is made keeping in view the process of recovery of DMT from polyester waste used by J.K. Synthetics Ltd., Kota. The information is true to the best of my knowledge." As can be seen from this certif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso necessary that the goods in question should be generally available in the market. Even if the goods are available from only one source or from a specified market, it makes no difference so long as they are available for purchasers. Thus ruling of Hon ble Supreme Court is very clear in as much as that the Supreme Court has not over-ruled the earlier rulings rendered in the series of cases but has only reiterated the point that when the goods are marketable, then they have to be considered as goods for the purpose of Section 3 and that generally not necessarily that it should be available in the market but even if there is a single purchaser then the test has been satisfied. As stated above in the present case, these tests have not been satisfied and the burden has not been discharged by the department. In that view of the matter, the appeal is allowed. [Order per : S.K. Bhatnagar, Vice President]. - With due respects to Hon ble Member (J) my views and orders are as follows : 10. Dimethyl terephthalate is a well known raw-material for manufacture of polyester and is normally marketed as such. There is also no dispute that the product Dimethyl terephthalate has been specifical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te a conclusive proof by themselves. 15. The appellants have also not produced any test report, technical literature, ground plan or photograph of plant or equipment or any other material in support of their contention. 16. The department has also not produced any such material or market enquiry report. 17. In the circumstances I consider that the material before us is not sufficient to give a final verdict in this regard at this stage. 18. It is also not clear whether both virgin and re-generated DMT was being produced or the former was being purchased as only this much has been mentioned that the later was being used for re-cycling. 19. Copies of the relevant classification lists have also not been filed. 20. That apart a legal point is also involved. From the brief facts of the case as noted by the Assistant Collector in his order it appears that a classification list had been initially filed under protest and subsequently it was approved. It is not therefore clear as to how yet another classification list was filed and that too with retrospective effect. 21. Both the sides have not shown as to how this could be done. 22. Once the Assistant Collector approves ..... X X X X Extracts X X X X X X X X Extracts X X X X
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