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TMI Blog2023 (10) TMI 958X X X X Extracts X X X X X X X X Extracts X X X X ..... t the finished goods were exported - HELD THAT:- No evidence has been placed by the Revenue in support of the allegation that without subjecting the received inputs to various processes by the appellant, these goods be considered as marketable and could be exported as it is. The processes undertaken by the appellant are necessary to put the product in marketable condition as per the requirement of the customers; the appellants, on the other hand, adduced evidence in the form of rejection letters of the customers rejecting the goods supplied by the Appellant as it did not meet their requirement as per the order placed. Hence, various processes blackening, buffing, final inspection, packing etc. carried out on the inputs be considered as pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RDER PER D. M. MISRA This appeal is filed against Order-in-Original No. 25/09(Denovo) dated 28.11.2009 passed by Commissioner of Central Excise, Bangalore-II Commissionerate. 2. Briefly stated facts of the case are that the appellant are engaged in manufacturing of Fork lift truck parts, components for machinery, automobile parts etc. falling under Chapter 84 87 of Central Excise Tariff Act, 1985 (in short CETA ). During the period from 01.4.2004 to 31.3.2006 the appellant availed CENVAT Credit of Rs. 2,40,75,746/- on the goods received in their factory and subjected to various processes like blackening, buffing, final inspection, packing etc. which were subsequently exported on the Letter of undertaking without payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not lose their original nomenclature, identity, and essential characters. He has submitted that as per Note 6 to Section XVI of CETA, 1985, the conversion of an article which is incomplete or unfinished would result into manufacture . He has further submitted that various processes undertaken by them which are necessary to meet the requirement of customers; these processes are narrated in detail (page nos. 177 to 355 of Vol. II of Appeal Paper Bok). Further, he has submitted that the processes of drilling, burr removal, grinding, blackening etc. are necessary to complete the goods and to render the same marketable, hence would definitely result into manufacture. In support, he placed reliance on the following decisions: 1) Western Ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacture as per the definition of Section 2(f) of CEA, 1944; hence, credit availed on such inputs is irregular. The claim of the appellant on the other hand that unless the aforesaid processes are carried out on the goods received, which were as per the requirement of customers, the product cannot be marketable. The details of processes have been listed by the appellant in Appeal Paper Book Vol. II at page nos. 177 to 355. No evidence has been placed by the Revenue in support of the allegation that without subjecting the received inputs to various processes by the appellant, these goods be considered as marketable and could be exported as it is. The processes undertaken by the appellant are necessary to put the product in marketable c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s alleged that the process of manufacture is complete as soon as the machine is assembled, yet it has not discharged the onus of proving the marketability of the machines thus assembled, prior to the stage of testing. Moreover, 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, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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