9911796707
TMI Blog2001 (8) TMI 1153X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Ld. Consultant Shri M.S. Rajappa submits that their competitor s matter on this issue came up for consideration before the Delhi Bench in the case of Punjab Power Packs Ltd. v. CCE, Chandigarh reported in 1998 (104) E.L.T. 50 (T). In the present case, the appellants had taken a stand that pro-cess of bringing into existence Liquid Electrolyte an ionic conductor electrolyte which provides the medium for transfer for electrons as ions, inside an electro chemical unit (cell) is not goods as they do not have a separate identity. It was also submitted that Lithium Hydro and Potassium Hydroxide in conjunction with Deionised water or other solvents dissolved salts, acids or alkalies do produce a new substance with a distinct character and use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said so-called mixing operation as held by the ld. Commissioner in Para 13 of the impugned order. He reiterates the judgment cited by the Commissioner in the order. 6. On a careful consideration of the submissions and on perusal of the facts of the present case with that of M/s. Punjab Power Packs Ltd. case (supra) cited by the ld. Consultant, we notice that the facts are identical and the issue is totally covered by the said judgment. The Tribunal after due consideration of the entire process has clearly held in Paras 5 to 8 that process does not bring into existence a new commodity and Revenue has not discharged their burden on marketability. The findings recorded in Paras 5 to 8 of the said judgment is extracted herein below : - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g on how the mixing results in a distinct commercial commodity having a different name, character and use from the solid form so as to satisfy the test of manufacture which is one of the important criteria for determining excisability. The second criterion namely that of marketability has also not been satisfied, since the Revenue has not discharged the burden of establishing marketability and the finding on this aspect, in Para 19 of the impugned order is solely based upon the statement of the Senior Works Manager that the cost of the impugned product has been included in the value of stationary batteries from which the Collector has inferred that the impugned product (electrolyte) is marketable and in fact marketed. 7.1 Let us now discu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has stated that solid KOH and solid LiOH are electrolytes in solid form and this submission has not been controverted by the Revenue. 8. In the light of the above discussion, we hold that the liquid electrolytes is not excisable; accordingly we set aside the impugned order confirming duty and imposing penalty and allow the appeal. Since the appeal is allowed on merits, we do not consider it necessary to deal with other arguments raised by the appellants. 7. Applying the ratio of the above judgment as a Co-ordinate Bench, we are required to uphold the assessee s contention that the item in question is not goods and duty is not chargeable on the said item. In that view of the matter, the impugned order is set aside and appeal allowed with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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