2015 (7) TMI 228

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..... lant has asked for early hearing of the appeal. But remained absent filing the application. 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 Supr .....

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..... of pencil would amount to manufacture'. While examining the issue, Tribunal has also gone into the marketability aspect of the case. In para 5 of the order, Tribunal observed that the mixture having a short life does not have the possibility of marketing. Meaning of the goods was examined by the Tribunal in that para in the light of judgment United Phosphorous reported in - 2000 (117) ELT 529 .....

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..... 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 .....

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..... marketable. The department had failed in showing if any facility existed for separation of the said three products and whether in the form in which the said three products came into existence in the reaction process were capable of being marketed. The finding of fact so arrived at has not been challenged much less dislodged before the Tribunal. The only argument advanced before the Tribunal was th .....

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..... 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 pres .....

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