9911796707
TMI Blog1999 (8) TMI 443X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of Silver Chloride manufactured by them. 3. The Commissioner, in the impugned order dated 29-10-1997, has confirmed the demand of Central Excise Duty amounting to Rs. 1,62,56,434/-, holding that Silver Chloride is a chemically defined compound containing more than 50% of Silver Chloride; that the impugned product is classifiable under Heading 28.43 of the Schedule to the Central Excise Tariff Act; that there is a particular variety of Silver Chloride which is being used in the production of pure silver and the silver chloride does not exist in one variety, rather it exists in several modifications differing in behaviour towards light and in their solvency in various solvents; that as mentioned in Hawley's Condensed Chemical Dict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d traces of copper and lead; that they had set up a Silver recovery plant in 1984 since the residue could not be further processed and as a result there was significant loss of Zinc which constitutes almost 30% of the residue; that the residue also contained 0.3% silver and the process of Silver recovery enabled recovery of Zinc. He, further, submitted the Silver Chloride arising as an intermediary product is not marketable; that as per the catalogue of MERCK Germany, the Silver Chloride found in market is of 99% purity; that as per the deposition of Dr. Y.L. Mehta, the purity of the Silver Chloride present in the amorphous mixture is only 66% ordinarily which is supported by test report of the Chemical Examiner; that thus the content of Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the present matter; that the burden of proof to show marketability which is on the department has not been discharged by showing that the impure silver chloride of 71% purity is marketable. Reliance was placed on the decision in the case of Tuticorin Alkali Chemicals v. Superintendent, 1991 (56) E.L.T. 295 (Mad.) = 1993 (44) ECR 596 (Mad.) wherein it was held that the Sodium Bicarbonate, being a mixture of chemicals arising at the intermediate stage in the manufacture of Soda Ash is not liable to duty as Sodium Bicarbonate; that the normal method of production of sodium bicarbonate was from Soda Ash. He also relied upon the decision in U.O.I. v. Delhi Cloth & General Mills Co. Ltd., 1997 (92) E.L.T. 315 (S.C.) in which the Apex Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, benefit of exemption under Notification No. 217/86 will be available to the Appellants. 6. Countering the arguments, Shri H.K. Jain, ld. SDR., submitted that as per Note 1(a) to Chapter 28 of C.E.T.A., the headings of this Chapter apply only to separate chemical elements and separate chemically defined compounds, whether or not containing impurities; that it is thus evident from this Chapter note that impurities contained in the product do not take away the product from the purview of Chapter 28. Referring to the findings in the impugned order, the ld. S.D.R. mentioned that as per admission of the Appellants, the content of Silver Chloride is 70% and rest are impurities. He placed reliance on the decision in the case of Mangalore C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... classifiable even if it contains impurities. Countering the argument of Commissioner based on the decision in Bhilwara Spinners case, he mentioned that yarn at any stage is dutiable and relied upon the decision in Porrits & Spencer (Asia) Ltd. v. C.C.E., 1999 (106) E.L.T. 18 (S.C.). 8. We have considered the submissions of both the sides. The ld. Counsel has mainly emphasised on behalf of the Appellants that the impugned product is not commercially known as Silver Chloride and it is not marketable. We find that the product has been described by them as Silver Chloride as it has been clearly mentioned by them in their written submissions that "Silver Sulphate reacts with Sodium Chloride to give Silver Chloride and Sodium Sulphate". Fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ride is not manufactured by them from Silver Nitrate solution treated with Hydrochloric acid or Sodium Chloride in Dark Ruby Red Light. We find that the Commissioner has dealt with all these arguments and gave his findings that the Silver Chloride is marketable. The concept of being known to the market is important not from the point of view whether the goods are sold as such but from the point of view whether the goods are manufactured as such. The fact that the goods are not actually sold in the market would not make any difference since excise duty is leviable on the manufacture of goods and not on their sale. Actual sale is not an essential ingredients for goods to be excisable. The Commissioner has met the submission of the Appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X
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