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TMI Blog2015 (7) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. In the application above it is brought out that the case of the appellant is covered by the decision of this Bench in the case of Umesh Pencil Processors Pvt. Ltd. Vs. CCE, Coimbatore reported in 2011 (267) ELT 74. Tribunal held in favour of that assessee and such decision was upheld by Hon'ble Supreme Court dismissing civil appeal of Revenue reported in 2011 (267) ELT A23 (SC). 3. In view of the prayer above, the record was examined and the earlier decision of the Tribunal was also gone into. Learned Commissioner (Appeals) in the present case in para 5.15 has held that mixture of graphite and clay coming into existence is marketable product. He upheld the classification made by the adjudicating authority in respect of such goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and clay' is not bought or sold in the market. The ld. Advocate submits that this mixture has 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. (supra), the Hon'ble Supreme Court observed that mere specification in the Dictionary, Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 marketable. We find that, in the present case, both the authorities below accepted the position that the 'mixture of graphite and clay' cannot be bought or sold. The department failed to produce any evidence that the goods are marketable. 7. In view of our discussion above, the demand of duty and penalty cannot be sustained. Accordingly, the impugned orders are set aside and the appeals are allowed with consequential reliefs. Stay applications are disposed of. 6. The present case being within the four of the case of Umesh Pencil Processors (supra), both, early hearing application and appeal are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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