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TMI Blog1987 (8) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... e levy of excise duty. However, by the Finance Act of 1979, the Tariff Item 43, which originally made woollen tops alone excisable, was sought to be amended, and after the said amendment the said tariff item included sliver as liable to the levy of excise duty. The relevant portion of Tariff Item 43 after its amendment is as follows :- "43. The wool tops and carded and gilled slivers containing in either case, more than 50% by weight of wool calculated on its total fibre contents." 3. After this amendment, the department called upon the petitioners to classify this item and to obtain a licence in that behalf. The petitioners pointed out that the carded and gilled sliver is not an item bought and sold in the market and as such would not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etition is that the sliver obtained in the process employed by the petitioners consists of a mere collection of loosely held fibres. The wool fibres in the said sliver are not of uniform length and are not combed. The sliver has no cohesive properties and cannot stick together and remains in loose form. This sliver is very brittle in nature and is liable to fall apart by handling. There is also a danger of its entanglement if it is not handled gently and if entangled, it becomes unsuitable for spinning. The said sliver cannot also be allowed to be dried and the humidity condition prevailing at the stage of carding of the wool into sliver has also to be maintained in the spinning section. If the moisture content is lost, the sliver gets drie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond contention was that the Parliament was not competent under Entry 84 of List I of the VII Schedule to the Constitution of India to amend the T.I. 43 so as to include therein an item which is not "goods" and which is not "manufactured". The third contention was that before duty of excise can be charged and collected, there must be removal of the product within the meaning of Rules 9 and 49 of the Central Excise Rules, 1944. It was contended that if the product was not removed from the factory and was obtained only at an intermediatery stage within a process in the factory, there was no removal, and there could be no liability for the payment of the excise duty. 8. The Court did not deal with the first two contentions, but accepted the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ys a part of the rule from the very beginning. With the result, the Delhi Judgment became questionable. I am told as against the judgment given by the Delhi High Court, the matter has gone to the Supreme Court and the interpretation of this very amended Rule 9 is under consideration by the Supreme Court. Mr. Rege, appearing for the respondents, pointed out that since the Supreme Court was considering this question, this petition should be adjourned till the Supreme Court decides this matter one way or the other. He also pointed out that in any event this Court will have to go into the question as to whether the amended Rule 9 would be applicable or not. He submitted that if the amended rule would apply, in that event it cannot be said that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a letter dated 3-9-1979 addressed by the petitioners to the Collector of Central Excise wherein the petitioners have stated that the carded gilled sliver being an intermediate product, the same is not ordinarily sold in the market. Mr. Rege pointed out that the word "ordinarily" would indicate that it might be sold in the market at some point of time or the other. I have seen the petition as a whole. The petitioners have made a categorical statement on oath that the product is not marketable and is not known to the trade as a commodity which is. The onus is heavily on the department to show as to how the same is marketable. Therefore, in my view it is clear that this intermediate product cannot be considered as "goods" within the meaning of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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