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TMI Blog2009 (3) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... commercially known. We find that the lower authorities have failed to consider this aspect, which are required to be examined on the basis of evidences. - E/1177/2001-B - 253/2009-EX(PB), - Dated:- 27-3-2009 - S/Shri M. Veeraiyan, Member (T) and P.K. Das, Member (J) REPRESENTED BY : Shri N. Mullick, Advocate, for the Appellant. Shri B.S. Suhag, DR, for the Respondent. [Order per : P.K. Das, Member (J)]. - This appeal is taken up for hearing in pursuance of the Order dated 21-2-2008 [2008 (224) E.L.T. 347 (S.C.)] of the Hon'ble Supreme Court in Civil Appeal No. 2155 of 2002 (White Machines v. Collector of Central Excise, Delhi), whereby Tribunal's Final Order No. 552/2001-B dated 12-12-2001 - 2002 (149) E.L.T. 210 (Tribunal) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of show cause notice and set aside the penalty. The assessee filed appeal before the Hon'ble Supreme Court. By Order dated 21-2-2008, the Hon'ble Supreme Court set aside the Final Order of the Tribunal and remitted the case to the Tribunal. For the purpose of proper appreciation of the case, the relevant portion of the order of the Hon'ble Supreme Court is reproduced below :- "The Tribunal has not recorded any finding regarding marketability of the intermediary product i.e. C.I. Castings. Counsel appearing for the assessee very fairly concedes that if the intermediary product is marketable, then the excise duty would be payable because the final product i.e. C.I. Chilled Rolls is exempted from payment of excise duty. Since, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Supreme Court in the case of Gujarat Narmada Valley Fert. Co. Ltd. v. Collector of Central Excise and Customs - 2005 (184) E.L.T. 128 (S.C.) held that onus was on revenue to establish marketability. In the present case, the Revenue failed to discharge burden of proof. (b) Even if the goods are marketable, the classification under Heading No. 72.07 is incorrect. He submits that Heading No. 72.07 covers "semi-finished products of Iron or Non-Alloys Steel", where the process involved is "continuous castings". In reply to the show cause notice, the appellant stated that they have not obtained process of continuous casting. (c) The goods in question were used in the manufacture of C.I. Chilled Rolls and it is classifiable only under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the marketability. He also submits that the appellants did not dispute that the goods in question were sold by them. (c) Regarding classification of intermediary goods i.e. C.I. Castings under Heading No. 7207, he submits that the Adjudicating Authority held that the castings manufactured by the appellant do not have essential character of finished goods, which were not disputed by the appellant, at any stage. He also submits that the Tribunal in the case of Shivaji Works Ltd. v. CCE - 1994 (69) E.L.T. 674 (T) decided the identical issue. It has been held that the castings will not be classified as machine parts till they have been machined. (d) That the goods in question cannot be covered under Chapter 84. He submits that both the Auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erely observed that the Circular issued by the Board do not speak anything about the marketability of castings. It is held that the castings manufactured by the appellant are capable or being sold in the market. The Commissioner (Appeals) held that these castings were sold to the customers who placed the order and not in the open market. We find that the Hon'ble Supreme Court in the case of Gujarat Narmada Valley Fertilizers Co. Ltd. (supra) held as under :- "6. This passage would clearly show the level at which the marketability has to be established. 7. The onus was on the Revenue. The only piece of evidence which has been produced by the Revenue was a test report which merely stated that the sample showed that the items were organic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd, the ld. DR submits that the appellant had been selling similar casting till 1990. It is well settled that in order to satisfy the test of marketability, it is required to prove that the goods should be capable of being marketed and the product is commercially known. We find that the lower authorities have failed to consider this aspect, which are required to be examined on the basis of evidences. 8. In view of that, we set aside the impugned order. The matter is remanded back to the Original Authority to examine the marketability and the other issues as contended by the ld. Advocate. The appellants are directed to produce the evidences in support of their contention before the original authority in de-novo proceeding. It is needless t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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