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TMI Blog1998 (5) TMI 185X X X X Extracts X X X X X X X X Extracts X X X X ..... itation and has imposed personal penalty of Rs. 20 lakhs. 2. The appellant s unit at Sindri, Dhanbad has two plants - one for manufacture of ammonium bi-carbonate, which is cleared on payment of duty and the other for manufacture of fertilizer grade ammonium sulphate which is exempted under Notification No. 181/86-C.E., dated 1-8-1986. Carb-liquor comes into existence, at intermediate stage, in both the plants. As the ammonium bicarbonate in the manufacture of which the same is consumed captively, is a dutiable product, carb-liquor enjoys exemption under Notification No. 217/86. Dispute relates to the quantity of carb-liquor consumed captively in the manufacture of ammonium sulphate and the duty has been confirmed by denying the benefit o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or is a nomenclature given by the appellant to the mixture in the reaction vessel for the sake of ready and easy reference. The said liquid mixture is always in a dynamic state constantly undergoing further reactions. The same is in a very unsteady and unstable condition and as the same had not reached the stage of reaction equilibrium, the composition keeps changing every moment. He further submitted that the liquor has to be constantly re-cycled so that ammonium carbon content in the liquor is of minimum concentration so that it can react with gypsum at the next stage. The carb-liquor always remains inside the reaction vessel i.e. primary carbonation tower and thereafter straightaway pumped to sulphate reactor. The same is not stored by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation necessary as per the technical book. Further, the ammonium carbonate is a solid crystalline mass and emerges by condensation during distillation. 15 Hawley s Condensed Chemical Dictionary indicates the derivation of ammonium carbonate as ammonium salts heated with calcium carbonate . The method of purification is indicated as sublimation . (Sublimation is the method by which vapours straightaway condense into solid form without going through the intermediate stage of liquid state). 16 Even the HSN Explanatory Notes under Heading 28.36 state that commercial ammonium carbonate included in the Heading occurs in a white crystalline masses or in powder soluble in hot water. 17 Therefore, solution or liquor of ammonium carbonate is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the arguments, Shri R.N. Das, ld. Advocate duly assisted by Smt. Urmila Dutta submitted that the appellants stand that carb-liquor is not a marketable commodity is self-contradictory to their own actions in as much as the same very carb-liquor has been sold by them to M/s. PDIL after getting the price list approved from the department. He submitted that the true criteria for testing the marketability of a product is its capability of being marketed and not the factum of its being actually marketed. The mere fact that a small portion to the extent of 0.2% has been marketed by them and the rest has been captively consumed is no help to the appellant in as much as the sale, however small and negligible, has established the marketability. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eactions and as such the same cannot be equated with ammonium carbonate solution falling under sub-heading 2836.90. This stand of the appellants is falsified by their own letter dated 12-1-1982 written to their jurisdictional Superintendent making a request to include the said product in their L-4 licence. Vide the said letter the appellants had classified the carb-liquor under erstwhile Tariff Item 68 and have shown their intention to sell to PDIL or any other prospective buyer. The same has been supplied through Road Tanker by means of pipeline drawn specially for the purpose direct from the production line. Price list declaring the price of the product as Rs. 2500 per MT was also approved by the department. The appellants arguments that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the territorial limits of this country. Applying the above principles laid down by the Supreme Court on the evolution of the concept of marketability based on earlier Apex Court s decisions, it is clear that even one transaction of sale and purchase is sufficient to establish marketability. The evidence of actual sale of carb-liquor on the record is sufficient to demolish the apppellant s case on the point of marketability. Accodingly, we hold that the `carb-liquor is excisable to duty under Tariff Heading 2836.90 of CETA, 1985. 11. However, we find that the appellant has a strong case on limitation. The show cause notice has been admittedly raised after the normal period of limitation of six months. Letter dated 12-1-1982 referred a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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