9911796707
TMI Blog1996 (10) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... the same and no new item comes out of which could be subjected to excise duty. It was submitted by them that the flare which comes out of these tubes is a crude item which is unfinished and as these are not marketable nor it is marketed; and that tube out of which the flare is made was at the relevant time classifiable under Tariff Item 23A(4). According to them the item in question continues to be classifiable under 23A(4) and even if it is a different product it cannot be classified under 23A(4) but falls under 68. The contentions of the party were negatived by the adjudicating authority holding that the tube itself is a finished item. The flare which is made out of that tube is a distinct item different from the tube. According to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e had already been in the form of glass known as glass tube by application further processes on such tubes to convert them into flare, the basic glass does not ceases to be glass or to that matter of glass tube. He observed that the only modification achieved by application of the process is creation of a flare at one of the ends of the tube cut into pieces or required size. Further he held that flare is not marketable and is also not a commodity available in the market anywhere for being bought and sold, no such evidence having been let in by the department. In the absence of such evidence, the comparison is incorrect and not acceptable. As regards classification of the products he observed that even if the product is to be treated as glas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... according to dictionary meaning the expression glassware is articles made of glass but in commercial sense glassware would not consist of articles like clinical syringes, thermometers, lactometers and the like which have special significance and utility. Thus, in popular parlance, a general merchant dealing in glassware does not ordinarily deal in articles like clinical syringes which though made of glass, are normally available in medical stores or with the manufacturers thereof. He submitted that on the same analogy, the item as such cannot be treated as glassware. Further, he submitted that it was neither marketed as such nor capable of being marketed. The burden squarely lies on the department to prove on the issue regarding market ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... marketability of the item. The burden lies on the department to prove whether item as such was marketed or capable of being marketed. Mere statement or arguments advanced on behalf of the Revenue that the similar item was manufactured by other manufacturers itself is not sufficient to hold that item as such is capable of being marketed. Further, the Asstt. Collector has given a clear finding that the product is never sold or cleared outside their factory and is not commercially known as flare not it is sold or purchased by anybody as flare. He also observed that in other words that tube in crude or elementary form used in the manufacture of electric bulbs and tubes and is not finished goods which can ordinarily come to the market to be bou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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