9911796707
TMI Blog2000 (3) TMI 576X X X X Extracts X X X X X X X X Extracts X X X X ..... drugs Salbutamol Sulphate (besides other bulk drugs) classifiable under Heading 2907.90 of Schedule to the CETA, 1985 and the same was chargeable to duty at 5% adv. in terms of Notification No. 31/88, dated 1-3-88. During the period from 1-3-86 to 29-2-88, the said product was exempted under Notification No. 234/86, dated 3-4-86. However, the department through their investigating wing after visited made out a case against the appellants on the ground that an intermediate product (1.1 Dimethyl Ethyl) Amino methyl-4 Benezyloxy-1-3 Benzene Dimethenol emerged and the same was used in the final product already mentioned. The Revenue was of the opinion that this compound is known as a product in the market and capable of being bought and sold an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of intention to evade duty. However, the Commissioner did not accept the plea and held that the item is to be marketable as it was a stable product and also held that there was deliberate suppression of facts and not intimating to the department about the occurrence during the course of manufacture of exempted product and hence duty was confirmed. 2. Arguing for the appellants, the learned consultant Shri M. Chidananda Rao contended that the Revenue has not discharged its burden regarding the excisability of the product. The department was required to have been shown that the goods are stable in nature and are being capable of trade as an inprocess material for marketing purposes and as no such proof has been produced, hence the burden ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra), the Tribunal has examined all the judgments of Hon ble Supreme Court referred to above on the issue of marketability and hence the issue is a settled one and the matter is required to be decided in their favour. He also relied on the decision in the case of Jal (P.) Ltd. v. CCE as reported in 2000 (123) E.L.T. 832 (Tribunal) = 1999 (30) RLT 36 (CEGAT) wherein Diamino benzophenone (DABP) which was arising at intermediate stage was attempted to be levied duty which was not accepted by the Tribunal and even the benefit of larger period was given on the ground that the appellants held bona fide belief and the same was not dutiable in view of the item occurring in continuous process of bulk drugs. The learned counsel submits that these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o discharge its burden to show that the item in question is marketable and that it is goods. The matter has been gone into in great detail in the case of Tata Iron Steel Co. Ltd. (supra) in respect of Crude Benzol, which has also occurred during the manufacture of benzene, benzol, oluene, toluol etc. and the Tribunal had examined the case in great length including the judgments of Hon ble Supreme Court and noted that it was not the product which is marketed and cannot be held to be goods in the light of the judgment of Hon ble Supreme Court rendered in the cases of Ambalal Sarabhai Enterprises, Moti Laminates, Bhor Industries (supra) and in the case of Union Carbide Ltd. as reported in 1986 (24) E.L.T. 169 and in the case of Andhra Prades ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce, we have to hold that the department has not discharged its burden to prove that the intermediate component to be held as goods and liable for duty. We have to accept the plea that when the main product was held to be exempted, therefore, the assessee could get a belief, that too a bona fide one, that any such unstabled components which arose during the manufacture of the final product would also be exempted. Therefore, the ratio laid down by the Hon ble Supreme Court in the cases of Camphor Drugs, Padmini Products and Tamilnadu Housing Board could be applied to the facts of the present case and the department has not shown any material evidence that the appellants held deliberate intention to suppress the material facts for evading dut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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