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TMI Blog2015 (1) TMI 377X X X X Extracts X X X X X X X X Extracts X X X X ..... t would not render goods marketable - Revenue has failed to place any material to show that the goods are sold and used in the further manufacture of any item - there is no material available to show that waste weak HCL acid is marketable and therefore it cannot be treated as an excisable commodity. Accordingly, the impugned orders are set aside - Decided in favour of assesse. - E/685, 686, 728 and 729/2004 - Final Order No.40891 to 40892/2014 - Dated:- 24-10-2014 - Shri P.K. Das and Shri R. Periasami, JJ. For the Appellant : Ms. L. Maithili, Advocate For the Respondent : Ms. Indira Sisupal, AC (AR) JUDGEMENT Per R. Periasami; A common issue is involved in all these appeals and therefore all are taken up for disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther confirmed demand of duty of ₹ 16,238/- and ₹ 8,880/- for the period from November 2000 to March 2002. Commissioner (Appeals) upheld the adjudication order. Hence, the appellants have filed these appeals before the Tribunal. 3. After hearing both sides and on perusal of the records, we find that the appellant took a definite stand before the lower authorities that the waste weak HCL acid is not marketable. The concentration of HCL is 10 - 15% and fetched a price of ₹ 25/-. But the concentrated HCL acid of 30 % to 33% marketed a price of minimum of ₹ 1,100/- to ₹ 1,200/- per MT. Revenue contended that waste weak HCL acid is processed by them. In order to appreciate this issue, we reproduce the process d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idic fumes and ferric oxides to form ferrous and ferric chloride in Hydrochloric acid medium with dissolved organics and some carbon soot. The waste acid is dark brown in colour because of high level of contamination and is not acceptable for any normal application. 4. The learned AR for Revenue submits that it is evident from the bills that the appellant sold the goods in market. In this context, he drew the attention of the Bench para 3.25 of the Order-in-Original dated 30.10.2002 and Order-in-Appeal dated 17.2.2004. 5. We are not impressed with the submission of the learned AR for Revenue. We find that the Hon ble Supreme Court consistently viewed that mere the goods are sold in the market would not be marketable. The Hon ble Supre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s opinion in Indian Aluminium Company Limited (supra), we disagree with the appellant s that zinc dross, flux skimming and zinc scallings are goods and hence excisable. 6. In the case of Gujarat Nermada Valley Fert. Co. Ltd. Vs. Collector of Excise Customs 2005 (184) ELT 128 (SC), the Hon ble Supreme Court held as under:- 4. The appellant is right in its contention that the decision of the CEGAT is based on conjectures, hypotheses and is illogical. After the decision of this Court in Bhor Industries Ltd. Bombay v. Collector of Central Excise, Bombay 1989 (1) SCC 602, unless the product is capable of being marketed and is known to those who are in the market as having an identity as a distinct identifiable commodity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase the plastic body of EMR of the respondents either for replacement or otherwise one cannot get it in the market because at present it is not a commercially known product. For these reasons, the plastic body, which is a part of EMR of the respondents, is not goods so as to be liable to duty as parts of EMR under para 5(f) of the said exemption notification. 6. This passage would clearly show the level at which the marketability has to be established. 7. The onus was on the Revenue. The only piece of evidence which has been produced by the Revenue was a test report which merely stated that the sample showed that the items were organic chemicals . It does not in any way establish marketability. Nor can marketability be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d also in another case of CCE, Meerut v. Titawi Sugar Complex [2003 (152) E.L.T. 21 (S.C.)], clinches the issue. 8. The learned AR for Revenue strongly relied upon the decision of the Larger Bench of the Tribunal in the case of CCE Vs. Keti Chemicals - 1999 (113) ELT 689 (Tri. - LB). In that case, the Tribunal held that spent sulphuric acid emerging as a by-product in the process of manufacture of another product to be considered as having emerged as a result of process of manufacture. Hence, spent sulphuric acid is a manufactured product. It was further held that the said item was sold and finds use in the manufacture of fertilizer. In the present case, Revenue has failed to place any material to show that the goods are sold and used in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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