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TMI Blog2014 (6) TMI 859X X X X Extracts X X X X X X X X Extracts X X X X ..... ess/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. 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 - Matter remanded back - Decided in favour of assessee. - Central Excise Appeal No.100 of 2013 - - - Dated:- 24-6-2014 - S C Dharmadhikari And B P Colabawalla, JJ. For the Appellants : Mr V Sridharan, Sr. Counsel with Mr Prakash Shah, Mr Anil Galani and Mr Jas Sanghavi i/b M/s PDS Legal For the Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xempt from payment of Excise Duty. The Appellant denied this allegation and maintained that the impugned product was neither marketed 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 consideration. On a de novo consideration, the Respondent by his order dated 28th November 2011 confirmed the demand in respect of 14 show-cause notices alongwith interest and also imposed a penalty on the Appellant. Being aggrieved by the said order, the Appellant preferred an Appeal to CESTAT who in turn inter alia held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the course of manufacture of jute carpets is not marketable and relied upon the said orders of the CESTAT reported in 1999 (111) ELT 807; 2003 (162) ELT 1114; 2005 (180) ELT 348 and 2006 (199) ELT 295. He therefore submitted that the impugned order is liable to be quashed and set aside on this ground also. 8. On the other hand, Mr Vijay Kantharia, learned counsel appearing on behalf of the Respondent, supported the impugned order. He firstly submitted that this Appeal raises no substantial question of law and ought to be dismissed on this ground alone. He further submitted that the impugned product emerging in the manufacture of jute carpets is similar to the nonwoven fabrics that are being cleared by the appellant on payment of Excise Duty and hence the impugned product is also dutiable. 9. With the help of the learned counsel, we have perused the memo of appeal as well as the annexures thereto. The main issue involved before the CESTAT was whether the impugned product emerging from the manufacture of jute carpets viz. non-woven fabrics was marketable and therefore excisable. It was the categorical contention of the Appellant that the impugned product does not have an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resaid 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 of Delhi Cloth and General Mills Co.Ltd. (supra) is well founded. Paragraphs 6, 7 and 8 of the said judgment read as follows :- 6. Learned counsel for the appellant submitted that the calcium carbide manufactured by the respondents was marketable and he relied in this behalf upon the orders of the Appellate Collector and Government of India, to which we have made reference. He also submitted that the calcium carbide manufactured by the respondents was in fact marketed till 1967. 7. The order of the Collector shows that the calcium carbide that was manufactured by the respondent for further utilisation in the production of acetylene gas was not of a purity that rendered it marketable nor was it packed in such a way as to make it marketable, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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