9911796707
TMI Blog2009 (10) TMI 603X X X X Extracts X X X X X X X X Extracts X X X X ..... pencil lead would amount to "manufacture". Original authority classified "mixture of graphite and clay" under Chapter Heading No. 68151020 of the Schedule to the Central Excise Tariff Act, 1985 and confirmed demand of duty along with interest and also imposed penalty. Commissioner (Appeals) upheld the adjudication order. 3. The learned Senior Advocate on behalf of the appellant submits that "mixture of graphite and clay" is used captively in the manufacture of pencil lead and further used in the manufacture of pencils. He submits that "pencil lead" and "pencils" classifiable under Chapter 96 of the Tariff Schedule attract 'Nil' rate of duty. He submits that "mixture of graphite and clay" has a short life and cannot be marketed and, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, the duty demanded on the "mixture of graphite and clay" after withdrawal of the exemption notification is correct. He also submits that "mixture of graphite and clay" is known in the market and, therefore, it is marketable. He contended that the selling of the goods is not relevant. The question is whether the goods are marketable? He submits that, in the present case, the mixture is marketable but the appellant used captively and, therefore, they are liable to pay duty. 5. After hearing both sides, and on perusal of the records, it is revealed from the order of the Commissioner (Appeals) that the "mixture of graphite and clay" is not bought or sold in the market. The ld. Advocate submits that this mixture has a short life and us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anced before the Tribunal was that the three items were mentioned as "goods" in the dictionary and in the excise tariff and Mercuric Acetate (MA) was also mentioned as one of the items entitled to drawback in Duty Drawback Rules. The Tribunal has observed that these facts and mere mentioning of an item in Drawback Rules with reference to a different context was not enough to satisfy the test of marketability unless it was shown that the intermediate products were capable of being taken to market and bought and sold." 6. We have noticed that the Tribunal in the case of Camlin Ltd. (supra) rejected the appeal filed by the Revenue on the same goods as there is no evidence whatsoever that the mixture of graphite and clay is at all marketa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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