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TMI Blog1991 (2) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... ne and diverted into two branches. One branch goes to the liquid chlorine plant, with which we are not concerned. The other branch is taken to a furnace where it is burnt with Hydrogen resulting in Hydro chloric acid fumes which are absorbed in water to make commercial grade Hydro chloric acid. The bone of contention between the parties is whether the mixture of gases liberated in the primary and taken through pipe lines for manufacture of Hydrochloric acid, otherwise called wet chlorine, is goods within the meaning of Section 3 of Central Excises and Salt Act, 1944 and whether it is classifiable under sub-heading 2801.10 of the Central Excise Tariff Act, 1985. The subsidiary question is whether in that form, it is marketable even though th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yya Nadar Janaki Animal College & Another (AIR 1984 SC 1512). Reliance is also placed upon the unreported judgments in M/s. Z. Raja Beedi Factory v. The Collector of Central Excise, Madras-34 (W.A. No. 257 of 1988 dated 2-3-1988), W.A. No. 1730 of 1987 dated 25-10-1988 and M/s. Southern Engineering Industries, Coimbatore v. The Superintendent of Central Excise, Coimbatore I Division, Coimbatore - 1991 (52) E.L.T. 373 (Mad.) (W.A. Nos. 865 to 875 of 1989 dated 30-10-1989). The principles are too well known. For more than one reason Courts should not take upon the duty of correcting every illegal order especially when it involves assessment of factual material or technical questions with which the prescribed authorities are more conversant an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 'ilmenite' has not suffered duty. Therefore, the 2nd respondent seeks to impose a duty on the chlorine content used in the manufacture of hydro chloric acid. Since there is no manner or method of finding out the actual quantity of chlorine utilised, the 2nd respondent has adopted the following method :- …. "Quantity of Hydrochloric Acid captively consumed 22248.050 during the period from 1-5-1987 to 31-10-1987. Requirement of Chlorine for 1 M.T. of Hydrochloric ….. 400 kg. Acid (30-33%) (Theoretical Requirement 321 kg. for 33%-Hydrochloric Acid) Total Chlorine consumed during the period from 22248.05 x 400 1-5-1987 to 31-10-1987 in 1000 MT the manufacture of Hydrochloric Aci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was also pointed out that the very fact the Department had to work out the quantity of chlorine on the basis of Hydro chloric acid produced and converting the wet chlorine into dry chlorine on the basis of arithmetic formula goes to prove the inherent difficulty in holding the goods as excisable. 5. The second respondent says that after the Central Excise Tariff Act, 1985 sub-heading 2801.10 is as follows :- "2801.10 - Chlorine (including liquefied or solidified gas)" The aspect of compression being no longer insisted upon in the entry and purity being no longer the deciding factor, the decision of the Government of India cannot be relied upon. Therefore, he came to the conclusion that wet chlorine is nothing but chlorine except that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t accepted. This plea of the respondents ignores the categorical finding of the Government of India on the second aspect of the case where it is held that wet chlorine is not goods excisable under Section 3 of the Act. In fact, even according to the second respondent, wet chlorine has to undergo the process of chilling, drying and liquefaction before it can be stored or conveniently transported. 7. A few more decisions which take the issue conclusively in favour of the petitioner may now be noticed. In Union Carbide India Ltd. v. Union of India and Others [1986 (24) E.L.T. 169 (S.C.)] aluminium cans at the point at which excise duty was levied existed in a crude and elementary form. To be a marketable commodity, it needed trimming, threadi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se a certain article falls within the Schedule it would not be dutiable under excise law if the said article is not "goods" known to the market. Marketability, therefore, is an essential ingredient in order to be dutiable under the Schedule to Central Excise Tariff Act, 1985." 8. In Collector of Central Excise v. Ambalal Sarabhai Enterprises [1989 (43) E.L.T. 214 (S.C.)], the Supreme Court observed as follows :- "For articles to be goods, these must be known in the market as such or these must be capable of being sold in the market as goods. Actual sale is not necessary. User in the captive consumption is not determinative but the artilces must be capable of being sold in the market or known in the market as goods. It is, therefore, neces ..... X X X X Extracts X X X X X X X X Extracts X X X X
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