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TMI Blog2004 (1) TMI 598X X X X Extracts X X X X X X X X Extracts X X X X ..... ardboard boxes (cartons). In each carton, they also enclosed a plastic carry bag in multi-folded form. They cleared the goods, on payment of duty, to their dealer and the ultimate consumer who would buy the footwear from the retail dealer would carry it home by putting the footwear-in-carton in the plastic bag. This manner of use of the plastic bag has been forthrightly stated in the memorandum of appeal thus : These carry bags were neatly folded and kept inside the box in which the pair of shoes were also kept so that at the ultimate sale point, the consumer is enabled to carry the box by putting the same inside the bag. In fact, the delivery of the articles at retail outlet is only in this manner. The Modvat credit taken on the plasti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the department by the Tribunal s decision in Liberty Shoes Ltd. v. CCE, New Delhi [2001 (135) E.L.T. 1103], in which case similar carry bags used for similar purpose during the period April to November, 1996 were held to be ineligible for input duty credit under Rule 57A. It is submitted that the said decision rendered by a 2-Member Bench of the Tribunal is binding on this Bench. 3. I have carefully considered the submissions. In the case cited by the DR, the assessee was engaged in the manufacture of footwears and was clearing the same along with carry bags in cardboard boxes after including the cost of such bags in the assessable value of the final product. The carry bags were intended to be used in the same manner as in the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The benefit of Notification No. 28/95-C.E., dated 29-6-95 relied upon by the appellants cannot be also extended to them. Under that notification the Modvat credit had been made eligible not only on those inputs which are used only directly but also indirectly in the manufacture of the final product. But such is not the position here. The carry bags are not being used as inputs directly or indirectly by the appellants in the manufacture of footwear. These bags are in fact utilized by the retailers at the time of the sale of the footwears to the consumers as they supply these bags to enable them to carry footwear cardboard box to home conveniently. The period of dispute in Liberty Shoes (supra) was April to November 1996. Though ld. Counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the first time. At the lower levels, they claimed under Rule 57A only. In the result, nothing contained in sub-rule (1) of Rule 57B is of any aid to the appellants case. 5. I have perused the Apex Court s judgment cited by ld. Counsel. It examines marketability of the subject goods for the purpose of excisability. It does not establish any nexus between marketability and input duty credit. As a matter of fact, marketability begins where manufacture ends. Input duty credit under Rule 57A has its association with manufacture only. The Tribunal s decision in Swaraj Mazda case also cannot be followed in the instant case inasmuch as the floor mats cleared along with motor vehicles in that case are hardly on par with the plastic carry bags c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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