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TMI Blog2000 (11) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... t it is sought to be argued that the deponents may not be interested in purchasing 'glass lumps' but it does not disprove marketability of the goods. We are unable to accept this contention. The burden of showing that the goods are marketable is on the Revenue. In the absence of any proof brought on record by the Revenue that 'glass lumps' are marketable or capable of being marketed, it is not possible to hold that the test of marketability is satisfied. For these reasons we set aside the order of the CEGAT under challenge and allow the appeal with costs. - 10218 of 1983 - - - Dated:- 28-11-2000 - Syed Shah Mohammed Quadri and S.N. Phukan, JJ. [Order]. - Leave is granted in SLP (C) No. 7908 of 1985. 2.These two appeals are filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. The appellant utilises 'glass lumps' for manufacturing the end products referred to above. 6.The appellant was served with Trade Notice No. 35/81 dated 7-9-1981 indicating that 'glass lumps' were classifiable under Item 68 before March 1, 1979 and thereafter they are exigible to duty under Item 23-A(4). On considering the reply of the appellant to the said notice, the Assistant Collector held that 'glass lumps' were manufactured products and also goods under the Excise Law. Against that order the appellant filed appeal before the Customs Excise Collector who upheld the order of the Assistant Collector and dismissed the appeal on January 19, 1983. The appellant carried the matter in appeal before CEGAT which was also dismissed. Against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ught and sold in the market. In the instant case it cannot be disputed that the 'glass lumps' though a by-product, satisfy the test of manufacture. The only controversy is whether they are goods as understood in excise law. To fulfil the requirements of excisable goods, they must be capable of being bought and sold in the market. 10.In South Bihar Sugar Mills' case (supra) kiln gas was produced in the process of burning lime stone with coke and lime in the kilns containing mixture of gases consisting of carbon dioxide, nitrogen, oxygen etc. which was compressed and utilised for removing impurities from sugarcane juice. From this compressed mixture of gases only the carbon dioxide was used and the other gases excaped into the atmosphere. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncerns showing that they are not interested in purchasing 'glass lumps'. No evidence whatsoever has been brought on record by the excise authorities to show that the said goods are marketable in the sense stated above. Based on the evidence of affidavits filed by the appellant it is sought to be argued that the deponents may not be interested in purchasing 'glass lumps' but it does not disprove marketability of the goods. We are unable to accept this contention. The burden of showing that the goods are marketable is on the Revenue. In the absence of any proof brought on record by the Revenue that 'glass lumps' are marketable or capable of being marketed, it is not possible to hold that the test of marketability is satisfied. For these reas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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