9911796707
TMI Blog1994 (2) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... ng subject to a duty of excise and includes salt". The expression "goods" is not defined. According to the learned counsel for the appellant, goods contemplated by Section 3 and Section 2(d) are those goods which are "marketable" and inasmuch as the poles manufactured by the appellant are not marketable, they are not goods. It is the correctness of the said submission which we have to examine. 2. The Appellant-Electricity Board requires poles of different sizes, strength and dimensions for distributing electricity generated by it. The manufacture of these poles is actually done by the contractors under the direct supervision of the Board. It is the Board which supplies the requisite material like cement, concrete and steel. In fact, one of the main contentions raised by the appellant before the Customs, Excise and Gold (Control) Appellate Tribunal (C.E.G.A.T.), besides the one urged in these appeals, was that the manufacture of the said poles is undertaken by independent contractors and that the Board merely purchased the same from them. On this basis, it was contended that the duties of excise must be levied upon the contractors and not upon the appellant-Board. This plea is, how ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure of vegetable product known as "Vanaspati". Vanaspati was subject to duty. It was the common case of both the parties that for the purpose of manufacturing vanaspati, the respondent-mills purchased groundnut and `til' oil from the market and subjected them to different processes before applying hydrogenation to produce vanaspati. The stand of the Union of India was that in the course of manufacture of vanaspati, the respondent-mills produced at an intermediate stage what is known as `refined oil' in the market and although the respondent may not sell it as such, still it being a marketable product, it was liable to excise duty under Tariff Item 23 of the Schedule which levied duty on "Vegetable, non-essential oils, all sorts, in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power." This stand was negatived by this Court holding that there could be no refined oil as known to the market without deodorisation. In other words, non-deodorised refined oil is not known to market whereas the `refined oil' obtained by the respondent at an intermediate stage of production of vanaspati is not deodorised. The respondent, it was held, applied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xture of gases generated by them was not carbon dioxide, as known to the market, since carbon dioxide as known to market, as per specification laid down by Indian Standards Institution, meant gas with 99% content of carbon dioxide. This court rejected the Revenue's stand holding that the mixture of gases (referred to as `kiln gas') was not carbon dioxide. Carbon dioxide was only a component of it, the content whereof ranged from 27 to 36.5%. According to the specifications laid down by the Indian Standards Institution, the carbon dioxide known to the market was a gas having a component of 99% carbon dioxide. The kiln gas cannot, therefore, be subjected to duty as carbon dioxide. The court observed that compressed carbon dioxide as known to market is wholly different from the kiln gas generated by the respondents. It does not mean, the court clarified, that if the content of carbon dioxide is less than 99%, it would not be carbon dioxide, for there can be sub-standard products as well. But what is produced and marketed must be carbon dioxide. The kiln gas generated by the respondents, the court observed, can never be understood as carbon dioxide, nor is it ever liquified or solidifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , threading and redrawing, they were reeded, beaded and anodised or painted. It is at that point that they became distinct and complete components capable of being used as flashlight cans for housing battery cells and for having a bulb fitted thereto. On the said facts, it was held by this Court that the aluminium cans in their aforesaid elementary and unfinished form were not capable of sale to a consumer and hence not marketable - nor were they ever marketed. This Court accepted the affidavit filed by the appellant that the aluminium cans in that state are not known to the market because the Revenue could not produce any material to the contrary. The ratio of this decision is that the aluminium cans, which were sought to be taxed were, in that state not marketable. They were not capable of being sold to a consumer, nor were they ever sold in that state. 8. The next decision relied upon is in Bhor Industries Ltd., Bombay v. Collector of Central Excise, Bombay [1989 (40) E.L.T. 280 (SC) = 1989 (1) S.C.R. 382]. The question in this case was whether the crude PVC films manufactured by the appellant therein were `goods' within the meaning of Section 3. The crude PVC films represented ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ln gas in South Bihar Sugar Mills, or aluminium cans with rough uneven surface in Union Carbide, or PVC films in Bhor Industries or hydrolysate in Ambalal Sarabhai, the finding in each case on the basis of the material before the court was that the articles in question were not marketable and were not known to the market as such. The "marketability" is thus essentially a question of fact to be decided in the facts of each case. There can be no generalisation. The fact that the goods are not in fact marketed is of no relevance. So long as the goods are marketable, they are goods for the purposes of Section 3. It is not also necessary that the goods in question should be generally available in the market. Even if the goods are available from only one source or from a specified market, it makes no difference so long as they are available for purchasers. Now, in the appeals before us, the fact that in Kerala these poles are manufactured by independent contractors who sell them to Kerala State Electricity Board itself shows that such poles do have a market. Even if there is only one purchaser of these articles, it must still be said that there is a market for these articles. The marketa ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
