9911796707
TMI Blog2017 (6) TMI 1067X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules, 1944, predecessor to CENVAT Credit Rules - credit allowed - appeal allowed - decided in favor of appellant. - E/3870/2012-EX[SM] - A/53959/2017-SM[BR] - Dated:- 8-6-2017 - Mr. Ashok K. Arya, (Technical Member) Present Ms. Sukriti Das Advocate for the appellant Present Shri G.R. Singh AR for the respondent ORDER Per: Ashok K. Arya 1. The appellant namely Balakrishna Industries is in appeal against Order in Appeal No.24/2012 dated 14.09.2012 whereunder Cenvat credit on the items namely AST Car Tyre and SV Car Ring Rims ( Ring Rims ) which were imported by the appellant as capital goods has been denied. 2. The brief facts are that: i. The subject item which has been discribed as AST Car Tyre and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be certified and the item cannot be sold in the market. 4.1 On the related subject the Hon ble Supreme Court in the case of Flex Engineering Ltd. Vs CCE, UP 2012 (276) ELT 153 (SC) has observed that items which are used directly or indirectly in relation to manufacturing final product would be entitled to Modvat credit under Rule 57(A) of erstwhile C.Ex Rules, 1944, predecessor to Cenvat Credit Rules. Hon ble Supreme Court in the said decision has inter alia observed as under: 13. It is manifest that Rule 57A of the Rules entitled a manufacturer to take credit of the Central Excise duty paid on the inputs used in or in relation to the manufacture of the final product provided that the input and the finished product are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the manufacture of the final product. It needs little emphasis that the process of manufacture is complete only when the product is rendered marketable. Thus, manufacture is intrinsically integrated with marketability. In this regard it would be profitable to refer to the following observations of this Court in Union of India Ors. v. Sonic Electrochem (P) Ltd. Anr., (2002) 7 SCC 435 = 2002 (145) E.L.T. 274 (S.C.). 8. We do not consider it necessary to discuss the cases on the question of marketability, as this Court has dealt with all relevant cases in A.P. SEB case, (1994) 2 SCC 428 = 1997 (70) E.L.T. 3 (S.C.). In that case, the question was whether electric poles manufactured with cement and steel for the appellant Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y are not exhaustive. It is difficult to lay down a precise test to determine marketability of articles. Marketability of goods has certain attributes. The essence of marketability is neither in the form nor in the shape or condition in which the manufactured articles are to be found, it is the commercial identity of the articles known to the market for being bought and sold. The fact that the product in question is generally not being bought and sold or has no demand in the market would be irrelevant. The plastic body of EMR does not satisfy the aforementioned criteria. There are some competing manufacturers of EMR. Each is having a different plastic body to suit its design and requirement. If one goes to the market to purchase the plast ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , as has been held in the case of Hindustan Zinc Ltd. v. Commissioner of Central Excise, Jaipur, (2005) 2 SCC 662 = 2005 (181 ) E.L.T. 170 (S.C.), the burden of proving whether a particular product is marketable or not is on the department and in the absence of such proof it cannot be presumed to be marketable. In the absence of the revenue having adduced any such evidence or contorted the assessee s claim that the machines cannot be sold unless testing is done with some alternative evidence as to their marketability, the stand of the revenue cannot be accepted. 21. Thus, in our opinion the process of testing the customised F S machines is inextricably connected with the manufacturing process, in as much as, until this process is ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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