9911796707
TMI Blog1999 (1) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... ereas the former was processed further to produce the end product, the latter substance was a by-product from which Calcium Tartaric could be recovered, the remaining product L-2 Amino Butanol being drawn away as a total waste product. The entire process of manufacture was given by the assessee to the department vide their letter dated 15-1-1987. On 27-4-1988, the assessee applied for permission to remove L-2 Amino Butanol Tartaric for recovery of Calcium tartarate to the factory of Yash Pharma under the provision of Rule 57F(2) of the Central Excise Rule, 1944. The process of manufacture was once again given in this application. The permission was given vide department s letter dated 3-5-1988. The assessee maintained regular accounts. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emistry and shown that the product could be considered an excisable goods falling under Chapter 29. He stated that the charge was not made in the show cause notice. He referred to the judgment of the Supreme Court in the case of Hindustan Ferodo Ltd. 1997 (89) E.L.T. 16 (S.C.) in which the court had observed that the appellate authority was not to make any substitution amounting to evidence. In the same judgment the Supreme Court had made observation on the failure of the Tribunal to consider the affidavit filed by the assessee. He maintained that the product L-2 Amino Butanol Tartaric had no commercial application and also that it was in an impure state. He submitted that marketability was an essential requirement for determining the dutia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion etc. on part of the assessee during the same period. The Tribunal held that in such a situation, the extended period could not be invoked. The same was the ratio of the judgment reported in the case of Modern Mills Ltd. - 1996 (82) E.L.T. 90 as well as in J.M.C. Industries - 1991 (53) E.L.T. 321. 4. Shri S.V. Singh, the learned DR citing from the adjudication order strongly defended the Commissioners finding. 5. We have carefully considered the various submissions made and have seen the citations. 6. We have seen the correspondence leading to the permission given to the appellants under the provisions of Rule 57F(2). In this application, the product L-2 Amino Butanol Tartaric was shown to be semi-finished goods. The process chart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee that the impugned goods were an intermediate product. In doing so he has not relied upon any specific evidence to negate the evidence produced by the assessee. He has merely relied upon certain case laws. We observe that in every case the fact of marketability of a particular substance has to be examined afresh since it is a question of fact and cannot merely be established by referring to some case law which discusses some other substance in some other circumstance. We also find that the judgment of the Tribunal in the case of Hindustan Ferodo on which substantive reliance has been placed by the Commissioner, was later on set aside by the Supreme Court in their judgment reported in 1997 (89) E.L.T. 16. In this case the Supreme Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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