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TMI Blog2015 (1) TMI 722X X X X Extracts X X X X X X X X Extracts X X X X ..... as a short life and used captively in the manufacture of pencil lead which attracts ‘Nil’ rate of duty. The Commissioner (Appeals) observed that the appellant availed the exemption notification and, therefore, it will be treated as excisable goods. In this context, the ld. Advocate contended that, inadvertently, they availed exemption notification and thereafter they contested the excisability of the goods. It is well settled that no product is ‘goods’ unless shown to be marketable by the department. In the case of United Phosphorous Ltd. (2000 (4) TMI 38 - SUPREME COURT OF INDIA), the Hon’ble Supreme Court observed that mere specification in the Dictionary, Excise Tariff and Drawback Schedule is of no consequence. - The lower authorities s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epared mixture of natural Graphite and natural Bentonite (clay) captively consumed for manufacturing Pencil Lead. Revenue was of the view that the mixture of natural Graphite and natural Bentonite (clay) would be classifiable under heading No. 38.01 and Central Excise duty is leviable. Therefore, M/s. Patel Stationers Pvt. Limited paid duty during the period March 2006 to December 2006 on the mixture of natural Graphite and natural Bentonite (clay). On 21.3.2007, the appellant filed refund claim of ₹ 15,44,225/- for the duty paid by M/s. Patel Stationers Pvt. Limited on the mixture of natural Graphite and natural Bentonite (clay) for the period March 2006 to December 2006. The adjudicating authority rejected the refund claim on the gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... try No. 242 of Notification No. 6/2002-C.E., dated 1-3-2002 till withdrawal of the said notification. Therefore, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of fact so arrived at has not been challenged much less dislodged before the Tribunal. The only argument advanced 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. It is seen that the above decision was upheld by the Hon'ble Supreme Court. Hence, in my considered view, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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