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TMI Blog2018 (7) TMI 247X X X X Extracts X X X X X X X X Extracts X X X X ..... EMBER And SHRI BIJAY KUMAR, TECHNICAL MEMBER Shri K. Choudhury, Supdt. (AR) for the Revenue (s) None for the Respondent (s) ORDER Per Shri P. K. Choudhary: The present appeal is filed by the Revenue against the Order-in- Original No.24 (De-Novo)/Commr./CE/Kol-III/2009-10 dt.25.06.2009 passed by Commissioner of Central Excise, Kol.III. 2. When the matter was called, none appeared on behalf of the respondent. With the consent of ld.A.R. for the Revenue, we take up the appeal for final disposal, as the present appeal is an old one, pertaining to the year, 2009. 3. Briefly stated the facts of the case are that the respondent-assessee imported and supplied railway wagons classifiable under Chapter 86 of Central Exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... frame and covered type containers. But from the show-cause notice dated 31.03.98, it appears that the assessee manufactured several parts of railway wagons viz. under-frame, floor, body, door and under-gear classifiable under sub-heading No.8607.00 of Central Excise Tariff Act, 1985. So, order of Hon ble Tribunal passed in connection with Texmaco Ltd. case is not squarely applicable in present case. 5. We find that the Tribunal in the case of Texmaco Ltd. Vs. Commr. of Central Excise, Kolkata III : 2008 (221) ELT 535 (Tri.-Kolkata), has dealt the issue in detail and allowed the assessee s appeal on the ground of marketability. For better appreciation, the relevant paras, 10 11 of the said decisions are reproduced below : 10. Af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s marketable. As regards the two products in question in these appeals, we find that underframe is clearly an intermediate product which is first assembled to build the wagon upon the same. There is no evidence from the Department that such underframe is marketable or that it is capable of being sold in market or known in market as identifiable goods. As regards the other item Covered Type Container , despite queries from Bench, the Department is not able to establish what this product is since we find from the submissions made by the Appellants that they build the wagons on the underframe itself and at no stage a separate Covered Type Container comes into existence. We also find that there is total non-application of mind on the part o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... came to the conclusion and held that the impugned goods are not liable to excise duty as identifiable or marketable parts of wagons. Hence, we are of the opinion that there is no substantial question of law is involved to admit this appeal. The appeal is therefore dismissed. For the foregoing reasons the application being G.A. No. 233 of 2008 is also dismissed . We also find that the Hon ble Supreme Court in the case of Cimmco Birla Ltd. Vs. Commr. of Central Excise, Jaipur : 2015 (319) ELT 552 (S.C.), has allowed the assessee s appeal by observing that it is incumbent upon the Department to prove that the parts which are used in the manufacture for railway wagons, were marketable. 6. In view of the above discussions, we do n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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