9911796707
TMI Blog2014 (6) TMI 859X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the facts and circumstances of this case, the impugned order passed by the CESTAT, holding that the loosely assembled fibre web in roll form emerging at a stage before the exempted finished jute carpet, is marketable and therefore liable to duty, without considering the relevant records and material submitted by the Appellants, is correct and sustainable in law?" 2. By this appeal filed under section 35G of the Central Excise Act 1944, the Appellant seeks to challenge the order dated 6th November 2012 passed by the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as "the CESTAT") confirming the order passed by the Respondent dated 28th November, 2011 that there was an emergence of excisable goods at the inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nor marketable. They claimed that the goods sold by them as "non-woven fabric" on payment of duty during the period of dispute were different from the impugned product referred to in the show cause notices. Accordingly, the Appellant contested the demand of Excise Duty on the ground that the marketability of the impugned product in question, had not been established by the Department through positive evidence. 5. The show-cause notices were adjudicated by the Respondent vide his order in original No.69-83/Commr/Raigad/2003-04 dated 31st December 2003. Being aggrieved, the appellant filed an Appeal before the CESTAT who, by its order dated 28th April 2010 allowed the same and remanded the matter back to the Respondent for de novo considerat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned product is marketable in the very same form, is on the Department and the Department had not led any evidence in this regard and hence failed to discharge its burden. In this regard, the learned counsel placed reliance on a judgment of the Supreme Court in the case of Union of India v/s Delhi Cloth and General Mills Co.Ltd., reported in 1997 (92) ELT 315 (SC). 7. Mr. Sridharan further submitted that the finding of CESTAT in the impugned order that the impugned product was having strength and stability and therefore marketable, was contrary to the process of manufacture relied upon by the Commissioner himself. He submitted that the Appellant had consistently stated that the impugned product emerging during the manufacture of j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... z. "non-woven fabrics" was marketable and therefore excisable. It was the categorical contention of the Appellant that the impugned product does not have any dimensional stability and hence not marketable. As rightly submitted by Mr Sridharan, the CESTAT has not taken into consideration the paragraphs 9, 10 and 14 of the affidavit of Shri Patwardhan, General Manager of the Appellant dated 7th November 2008. The said affidavit inter alia states that for the purposes of the present dispute, there are four final products manufactured and cleared from the factory. They are Geo Textiles, blankets, automobile carpets and jute carpets. Broadly speaking, the affidavit states that the process of manufacture of the aforesaid products is similar / com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... about the fact that the impugned product "goes through first pass only whereas goods cleared from the factory go through second pass. Therefore, compactness/tensile strength/dimensional stability of 'non-woven fabrics' cleared from factory is much more than the intermediate product." Having come to the aforesaid conclusion and itself making a distinction between the impugned product and the "non-woven fabrics" that were being cleared by the Appellant on payment of the requisite Excise Duty, we find that the CESTAT misdirected itself by shifting the burden on the Appellant of establishing that the impugned product is not marketable. In this regard, the reliance placed by Mr Sridharan on the judgment of the Supreme Court in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y that may by further processing be made marketable." 11. We find from the record that the Department led no evidence whatsoever to establish that the impugned product in the form that it is, is marketable and therefore dutiable under the provisions of the Act. Furthermore, we find that the CESTAT has not taken into consideration several orders passed by it earlier in similar matters such as that of the Appellant and which have been referred to by us, earlier in this judgement. 12. For all the aforesaid reasons, the appeal is allowed and the impugned order dated 6th November, 2012 passed by the CESTAT is set aside and the matter is remanded back to the CESTAT for a de novo consideration on the issue whether the impugned product i.e. "non- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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