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TMI Blog2001 (7) TMI 566X X X X Extracts X X X X X X X X Extracts X X X X ..... canvas shoes were not subject to any duty, the said rubberised cotton fabrics are liable to pay duty. 2. The appellant were thus issued a show cause notice dated 31-3-1995 by the Collector of Central Excise, Chandigarh in which it is alleged that during the period 1990-91 to 1994-95 the notice availed exemption on their product viz., canvas shoes; that they manufactured rubberised textile fabric falling under SH 5906.10 and consumed it captively; that no exemption was available on such rubberised textile fabric, as the end products themselves were enjoying the exemption under the relevant exemption Notifications; the noticee contravened the provisions of the Central Excise Act and Rules and suppressed the fact of manufacture and clearance of the rubberised fabrics. Therefore, they were called upon to show cause as to why the Central Excise duty amounting to Rs. 3,39,505/- (including SED and Cess) on the said captively consumed goods during the period 1990-91 to 1994-95 should not be recovered from them under the proviso to Section 11A of the Central Excise Act, 1944 and penalty should not be imposed on them under rule 173Q of the Central Excise Rules, 1944. 3. The noticee cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods can also be brought and sold in the market. It is contended that the fact that the product is not sold by the parties in the market does not alter the position and does not render them unmarketable. It is stated that the fact that the goods are not actually marketed is of no relevance and it is also not necessary that the goods in question should be generally available in the market. Reliance is placed on the following decisions :- (i) A.P. State Electricity Board v. C.C.E. 1994 (70) E.L.T. 3 (S.C.). (ii) Flexoplast Abrasives (India) Ltd. v. CCE, Pune 1988 (36) E.L.T. 119 (Tribunal). 6. It is further contended that there is no standard specification laid down for rubberised cotton fabrics. But it does not mean that if a person intends to purchase rubberised cotton fabrics of a particular type and specification, the same would not be available. The mere fact that a commodity is not placed in the market or is not offered for sale, does not mean that it is not marketable. All that it means that the manufacturer has chosen not to market it being of a specific composition and also not to disclose his secret formula to the trade. The reliance is further placed on the decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a short shelf life and is therefore not marketable. The learned Counsel for the respondents has relied on the Final Order No. 993-1005/99-C, dated 17-9-1999/16-11-1999 in the case of M/s. Metro Tyres Ltd., Others v. CCE, Chandigarh. In the cited case, the duty was confirmed on the appellants by the Commissioner on rubberised cotton cord/fabric classifiable under sub-heading 5905.10 manufactured and captively consumed within their factory premises in the manufacture of exempted varieties of Bicycle/Rickshaw Tyres and certain specified variety of A.D.V. tyres. During the course of manufacture, the rubberised cotton cord/fabrics came into existence as an intermediate product which was further used in the manufacture of tyres for bicycles/rickshaws. The Tribunal in its decision observed that on the basis of the evidence before them, the shelf life of the product was ranging from 3 to 24 hours which cannot be termed as a long shelf life so as to bring the product into the market for the purpose of buying and selling. The Tribunal relied on the decision of the Hon ble Supreme Court in the case of Moti Laminates v. CCE, Ahmedabad [1995 (76) E.L.T. 241 (S.C.)] in which the Apex Court ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n record to establish that the rubberised cotton fabrics emerging in the process under consideration is marketable as a distinct commodity. It is well settled that burden is on the Revenue to establish the marketability of goods which they are seeking to subject to Central Excise duty. The reliance placed by the Revenue on the decision of the Apex Court in Union of India v. Punjab Rubber Allied Industries (supra) is misplaced inasmuch as in that case the Division Bench of High Court in their impugned judgment against which the Revenue had filed an appeal before the Supreme Court had observed : There is no manner of doubt that the process of manufacture of transmission of T.R. Beltings V : shaped Belts and Conveyor Belts, produced by the petitioner, is a composite, interaged and uninterrupted process and even if some article styled as Friction Cloth comes into existence at an intermediary stage, the Department is not justified in demanding excise duty on the said product, especially when it is nobody s case that this intermediary product is used or sold by the petitioners in the market. As regards to these findings of the High Court, the Hon ble Supreme Court observed in their ..... X X X X Extracts X X X X X X X X Extracts X X X X
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