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TMI Blog2015 (10) TMI 1562X X X X Extracts X X X X X X X X Extracts X X X X ..... this product is captively consumed by the respondent-assessee. The case of the Revenue is that the respondent-assessee is required to pay the duty on the item wort. The case was adjudicated by the original authority who dropped the demand. Aggrieved by the said order, the Revenue filed appeal before the Commissioner (Appeals) who dropped the demand/confirmed the order of the original authority. Against the said order of the Commissioner (Appeals), the Revenue is in appeal before this Tribunal. 3. Learned AR submitted that the item wort is chargeable to duty and in support of his contention, he submitted the judgment of the Hon'ble Supreme Court in the case of Escorts Ltd. vs. CCE, Faridabad reported in 2015 (319) ELT 406 (SC). Learned AR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tances of each case and there can be no uniformity and a case law for one item cannot be made applicable to other item. 5. We have considered the submissions of both the sides. We find that this Tribunal in the respondent-assessees own case reported in 2003 (158) ELT 171 (Tri.-Mum.) has observed as under:- "2. After hearing both sides and considering the material on record it is found - (a) The WORT is an intermediate product. The show cause notices issued in both these cases, do not bring out any material to indicate how the intermediate product WORT is marketable. It is now well settled that for levy of duty under the Central Excise Act, 1944 on an intermediate product, establishing its marketability is essential. The Apex Court in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the adjudicator. In this case a full Bench had held marketability is a decisive test for dutiability. It only means salability or suitable for sale. It need not be in fact marketed. The article should be capable of being sold or been sold to consumers in the market as it is i.e. without anything more. Thereafter observing in the facts of the Indian Cable Company case that the Tribunal was swayed by the fact that conversion of PVC resin into PVC compound by the process employed by the appellants amounted to manufacture, within the meaning of Section 2(f) of the Act by itself will justify the levy of duty was a impalpable error committed by the Tribunal and the matter was remanded back to the Tribunal to consider the appeal afresh. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te enactments viz., manufacture of Beer and Wine Rules, 1966, where it is mentioned at different rules, the process is in the control of a Brewery Officer/(excise) and no removals of WORT could be effected without his permission. This plea of the appellant was to be dealt with by the Commissioner and a finding arrived at how the goods would still be marketable. The plea, does lead to a conclusion that the tests, prescribed by the Apex Court in Delhi Cloth and General Mills case [1977 (1) E.L.T. (J 199)] of the goods ordinarily coming to the market to be bought and sold by merchants and traders has not been applied by the investigators and the Commissioner to the entity WORTS, no evidence on records points to WORTS passing this test. (d) S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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