9911796707
TMI Blog2008 (12) TMI 551X X X X Extracts X X X X X X X X Extracts X X X X ..... e 5 & 6 and Chapter 30 & 33 of Central Excise Tariff Act, 1985 and makes the goods liable to duty. He submits that the products in question whether in container packing or without container packing delivered through telemarketing are marketable without any difference. Further he submits that the goods sold in the container through telemarketing while originally coming from the factories are all along in containers being subject to Drugs and Cosmetics Act, 1956. The goods that comes from factory directly are as such marketable without any difference as to further containerization. Such sale is nearly 50% of the quantities sold and that was pleaded before the authorities below as revealed by page 100 of the paper book. 2. Also his submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Apex Court. He also cites that this Tribunal has held that the retail pack from bulk pack not to be dutiable invoking chapter note in the case of Deepak Trading Co. v. CCE, Kolkata reported in 2008 (225) E.L.T. 532. Therefore, he prays that pre-deposit may be waived during pendency of the appeal. 4. Ld. JCDR appearing on behalf of Revenue submits that the show cause notice itself brought out the manner how teleshopping was carried out and that has made the goods to be marketable. He submits that marketability was facilitated by subsequent packing at the appellants' level to market the goods. He brings to our notice that the authorities have examined the issue thoroughly and even issuing notice to the manufacturer i.e. Devo Laborat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as well as packed the same in the respective container before the goods are cleared from their factories. This appellant received the goods and markets the same as it is and merely to the extent 50% of sale are without further packing. We observe that when there are two different activities carried out by this appellant for marketability of the goods, there is no evidence prima-facie, available to examine the extent of clearances of the present appellant with the second container and without second container. We are not able to find whether any market survey was conducted to prove that the marketing of goods by the Appellant without being put in second container was impossible and whether goods were sold at the counter without second pack ..... X X X X Extracts X X X X X X X X Extracts X X X X
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