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TMI Blog2006 (7) TMI 396X X X X Extracts X X X X X X X X Extracts X X X X ..... avindra Narain, ld. Advocate for the respondents M/s. Essen Plastic Industries. No one appeared for the respondents M/s. ACE Plastics Pvt. Ltd. despite notice and there is also no adjournment request from them. 2. In both the cases, the dispute relates to durability of the impugned product tooth brush handle made of plastic. In the case of M/s. Essen Plastic Industries, the lower appellate authority has held the impugned goods to be classifiable under Heading 96.03 as essential part of the brush and hence chargeable to nil duty under his order dated 3-8-99. In the case of M/s. ACE Plastic Pvt. Ltd., the lower appellate authority under his order dated 31-8-99 has followed the lower appellate authority s aforesaid order dated 3-8-99 in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be classified as toothbrushes under Heading 96.03 attracting nil rate of duty. He further argues that in case the impugned goods are held to be classifiable under Chapter 39, the same should be held to be non-marketable as it is not a product which is ordinarily bought and sold and hence the same cannot be deemed to be excisable goods. In support of his argument he relies on the decision of the Hon ble Supreme Court in the case of Union of India v. Sonic Electrochem (P) Ltd. [2002 (145) E.L.T. 274 (S.C.)]. 5. We have considered arguments from both sides and perused the case records including the cited case law. As regards the classification of the impugned goods, we find that the same do not have the essential characteristics of a too ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cate appearing for one of the respondents has stated that these toothbrush handles are not marketed and there is no market existing where such handles can be bought and sold. He further states that the respondents undertake manufacture of these handles only for supplying to M/s. Colgate and even the name Colgate is embossed on the handles. We have perused the cited decision of the Hon ble Supreme Court in the case of Sonic Electrochem (P) Ltd. (supra). In the said case, the issue in question was whether plastic body of Electro Mosquito Repellent can be considered as a marketable commodity and hence, whether excisable or not. We reproduce below paragraph 9 of the said decision for better appreciation of the ratio of the said decision of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ape or condition in which the manufactured articles are to be found, it is the commercial identity of the articles known to the market for being bought and sold. The Hon ble Supreme Court has decided that if one goes to the market to purchase plastic body of EMR either for replacement or otherwise one cannot get it in the market because at present it is not a commercially known product. Hence, the Hon ble Supreme Court has held that the same did not meet the test of marketability and hence not goods liable to excisable duty. 8. In our view, the ratio of the Hon ble Supreme Court in the case of Sonic Electrochem (P) Ltd. (supra) clearly applies to the case at hand since the plastic handles of the toothbrushes made for Colgate is not at p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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