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TMI Blog1995 (11) TMI 143X X X X Extracts X X X X X X X X Extracts X X X X ..... leviable on the following intermediate products :- 1. Mercuric Acetate (MA) 2. Para Chloro Phenyl ISO Valeric Acid (PCA) 3. Chloro synthemic Acid Chloride (CSA Chloride) 2. M/s. United Phosphorus Ltd. are engaged in the manufacture of insecticides, fungicides, weedicides and pesticides falling under Tariff Sub-heading 3808.10 and the above items came into existence as intermediate products during the course of manufacture of the items namely : 1. Phenyl Mercury Acetate 2. Fenvalerate 3. Cypermethrin. 3. We have heard Shri J.J. Bhatt, Sr. Advocate with Shri P. Shah, Advocate for the party/assessee M/s. United Phosphorus Ltd. and the department was represented by Shri Sanjeev Sachdeva, ld. SDR in both the cases. 4. The Colle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hol and water; sensitive to light; d 3.2544 Hazard : Toxic by ingestion, inhalation, and skin absorption; strong irritant. TLV (as mercury) : 0.01 mg/m3 of air". He took note of the fact that Ministry has fixed Drawback rate for Mercuric Acetate at Rs. 81 per kg. (at S. No. 1106(ii) vide Ministry s letter No. Drawback/PN-3/91 dated 15-3-1991). He also observed that the second item Para Chloro Phenyl ISO Valeric Acid in an intermediate product which comes into existence in the manufacture of a final product Fenevalarate . He took note that the subject chemical has definite formula, molecular weight and constants and is classifiable as an organic chemical. It is also observed that ParaChloro Phenyl Acetic Acid and 2-4 Chlorophenyl - 3 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and was barred by time as there was no suppression of facts and larger period could not be invoked in the absence of suppression and intention to evade payment of duty. It was submitted that at the time of filing the application for L-6, detailed process of manufacture was disclosed and in this regard an affidavit was also filed. Shri Sachdeva, ld. JDR while adopting the stand taken by the department submitted that the very fact that these items were well-defined and described in the Chemical Dictionary, Technical Literature itself is a proof that the item is known in the commercial world as such and accordingly capable of being marketed. Furthermore unless the item was marketable it cannot have figured in the Drawback Rules with reference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also been held that though actual sale is not necessary, evidence must be produced by the department that the goods, in fact, are capable of being marketed. It is clear from these two decisions that burden lies on the department to prove marketability. Supreme Court has been consistently taking the view that marketability of a product is a pre-requisite or sine qua non for levy of duty starting from Bhor Industries and even in the recent cases including the cases referred to be the ld. counsel for the party. It is well settled position that burden lies on the department to prove excisability as well as classification of the product and similarly burden lies on the assessee to prove exemption. Mere fact that goods do find place in the tariff ..... X X X X Extracts X X X X X X X X Extracts X X X X
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