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TMI Blog2001 (12) TMI 367X X X X Extracts X X X X X X X X Extracts X X X X ..... lity of the paste prepared in the appellant's factory and consumed captively for pasting of stamps, labels, papers etc. during manufacture of matches. By holding such paste to be excisable, the authorities below have confirmed the demand of duty of Rs. 11,99,777.86 and of Rs. 81,847/-. The penalties of Rs. 50,000/- and Rs. 5,000/- have also been imposed upon the appellant under the provisions of Rule 173Q. 2. We have heard Shri S.K. Bagaria, ld. Advocate for the appellant and Shri D.K. Bhowmik, ld. JDR for the Revenue. 3. The appellant's contention is that the said paste which is manufactured in the appellant's factory on the shop floor on day to day basis is in crude and elementary form and has got extremely short shelf-life an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all capable of being either preserved or taken to the market for being bought and sold." 4. The appellants have also referred to the following evidences in support of their plea that the paste in question cannot be marketed :- "(a) In the Test Certificate No. 200338/99 of National Test House, after testing the sample of the said paste, it has been clearly reported that its shelf-life is three days and that on the fourth day it was showing fungus growth and that within seven days it was showing separation of liquid. (b) In the affidavit of Sri Hemendra Kumar Dey it has been affirmed that in view of the said paste being unstable material, it is impossible to bring the same to the market for trading purposes and that it is ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued by Chandigarh Collectorate; (c) Trade Notice No. 42/89-C.E., dated 13-4-89 issued by Meerut Collectorate; (d) Trade Notice No. 188/89-C.E., dated 27-9-89 issued by Hyderabad Collectorate." 6. The appellants' contention is that the above Circulars clarifying the position are binding upon the Revenue as held by the Hon'ble Supreme Court in the case of SAIL v. CC reported in 2000 (115) E.L.T. 42 (S.C.) = 2000 (36) RLT 369 as also in a number of other cases. The appellants have also relied upon the other various judgments of the Hon'ble Supreme Court as also of the Tribunal in support of their contention that unless the goods are held to be marketable, they cannot be made leviable to duty of excise. The onus to prove that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etc. by the appellants which is an independent activity from the manufacture of match boxes. He has also observed that irrespective of period of shelf-life, the goods have to be held excisable. We are afraid that the above findings of the appellate authority are not in accordance with law laid down by the Hon'ble Supreme Court in a number of cases. For becoming excisable goods, the same have to be marketable i.e. capable of being marketed. The evidences produced by the appellants in the shape of its report and expert opinion, point to only one factor when paste is to be consumed as soon as possible and in any case does not have shelf-life of more than 2 to 3 days. It is also well-settled that the onus to prove the marketability of a product ..... X X X X Extracts X X X X X X X X Extracts X X X X
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