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TMI Blog1995 (7) TMI 177X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the manufacture of Insecticides/pesticides. The appellants were imposed with a penalty of Rs. 25,000/- under Rule 173Q of the Central Excise Rules, 1944. 2. The appellants were issued with a show cause notice dated 27-8-1992, which invoked the proviso to Section 11A(1) of the Central Excises and Salt Act, 1944 by raising a demand of Rs. 2,89,02,653 on the following intermediate products, which are said to have been produced by the assessee, while manufacturing insecticides/pesticides viz, Phosalene, Ethion and Phorate. The department has alleged that the following intermediate products are produced by them namely :- (i) Chloro Methyl Chloro Benzoxenolene (CMCB) (ii) Diethyl Dithio Phosphoric Acid (DFDTP) (iii) Sodium Salt of DE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tain the same. The department also alleged that since the fact of manufacture of these intermediate products was not notified to the department and the duty liability in respect of these intermediate products were not discharged before they were captively consumed and, therefore, they are said to have contravened various provisions of Central Excise Act and hence, the show cause notice dated 27-8-1992 was issued on the assessee invoking the proviso to Section 11A(1) asking them to show cause as to why the said duty should not be demanded and why penalty should not be imposed under Rule 173Q of Central Excise Rules, 1944. 5. The assessees in their letter dated 17-11-1992 are said to have admitted about the said intermediate products coming ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e with the contention. He has held that so long as the intermediate products in question become identifiable organic compound then they are required to be classified under Chapter Heading 29.42 and the duty liability is required to be discharged. He has held that the tariff heading does not specify that the product should be chemically pure or otherwise. He has further held that the evidence produced by the appellants did not eliminate the capability of being marketable despite its transient shelf life. He has rejected the evidence produced by the appellants and has held that the evidence led at best establish that the intermediate products have a limited shelf [life]. No more no less . He has also rejected the plea of demands being time b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Thanking you, Yours faithfully, (T. KRISHNA REDDY)" The letter issued by the Pesticides Association of India is also relied by the counsel which is reproduced hereinbelow:- PESTICIDES ASSOICATION OF INDIA 1202, NEW DELHI HOUSE, 27, BARAKHAMBA ROAD, NEW DELHI-110 001. PLEASE QUOTE TO WHOM SO EVER IT MAY CONCERN Pesticides Association of India is the main representative association of pesticides industry in India. It represents most of the technical grade pesticides manufacturers including those manufacturing organo phosphoric pesticides. To the best of our knowledge the following products have not been traded and have not been sold in the market by the organo phosphatic technical grade pesticide manufacturers :- (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling rendered in the case of TISCO v. Collector of Central Excise, as reported in 1995 (76) E.L.T. 602. 10. The Learned DR submitted that so long as the intermediate products are identifiable and they were organic compound and had the capability of marketability then they are other goods and are required to discharge the duty. In this context, he relied on the ruling rendered in the case of Collector of Central Excise v. Travancore Electro Chemical Industries Ltd. as reported in 1994 (74) E.L.T. 936. He also pointed out to the technical literature at pages 146 to 147 of the paper book which suggests the shelf life of the intermediate products. Referring to the opinion given by the Indian Institute of Chemical Technology, the Learned DR su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Advocate submitted that mere fact that these items are mentioned in chemistry book is not sufficient to hold that the products are known in the market. He submitted that the burden of marketability was on the Revenue and the Revenue had miserably failed to prove and discharge its burden on marketability. He also submitted that mere mention of the name of the goods in the tariff schedule is not sufficient to discharge the burden of marketability. Therefore, he submitted that the question of shelf life is required to be gone into by the department and the impugned order was required to be set aside. 13. We have carefully considered the submissions made by both the sides and have perused the records. We notice that the appellants have produ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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