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TMI Blog1990 (9) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... a composite plant from the raw material stage upto the stage of final product. The process of manufacturing bimetal bearings is first to purchase aluminium ingots from canalising agencies. The aluminium foils are purchased from the open market. The alloy billets are then faced, rolled and annealed in the plant. During annealing, excess tin and other impurities appear on the surface of the rolled billet in the form of bubbles. The bubbles are removed by process known as tin bleeding. The alloy billets are then flattened and degreased and brushed. The aluminium foil is also brushed. The flattened alloy billets and the aluminium foils are thereafter bonded together by cold rolling to form aluminium alloy strip with the foil together. The alum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Company by filing appeal before the Collector of Central Excise (Appeals), Poona and the appeal was dismissed on December 31, 1981. The Appellate Authority held that the product is liable to excise duty if (a) it is a result of manufacturing activity; (b) it is goods and (c) it is specified in the First Schedule to the Central Excises Salt Act. The appellate authority held that aluminium alloy strips are goods as the same are movable, have exchangeability and economic value, and therefore the Company is liable to pay duty on manufacture of alloy strips under Tariff Item 27(b). The order of the Appellate Authority confirming the classification list, filed under protest, by the Assistant Collector is under challenge in this petition fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utiable under the excise law if the said article is not goods known to the market. The Supreme Court held that the marketability is therefore an essential ingredient in order to be dutiable under the schedule to the Central Excise Tariff Act. It is suffice if reference is made to the two decisions of the Supreme Court reported in 1986 (24) E.L.T. 169 (Union Carbide India Ltd. v. Union of India) and 1989 (40) E.L.T. 280 (Bihor Industries v. Collector of C. Ex.). 4. Shri Hidayatullah submitted that on the question as to whether aluminium alloy strips are marketable, the petitioners are consistently claiming right from the date of filing of classification list that the article is not marketable. The learned counsel urged that the Department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y is entitled to refund of duty erroneously recovered. The submission is correct and deserves acceptance. Shri Desai, learned counsel appearing on behalf of the Department, submitted that grant of refund would amount to unjust enrichment of the Company. The Full Bench of this Court in the judgment reported in A.I.R. 1990 Born. 239 = 1990 (46) E.L.T. 23 (Born.) (New India Industries Ltd. v. Union of India) held that the burden is upon the Department to state on affidavit as to how the doctrine of unjust enrichment would be attracted and the Department must establish that duty was passed off by the Company to the consumers. In the return filed on behalf of the Department, there is no whisper of such claim and therefore the contention of unjus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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