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TMI Blog2005 (4) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... tability. Something more would have to be shown to establish that DECA AND CMBE were known in the market as commercial products. The Tribunal has ignored the evidence given by the employees of the appellant. In fact the wrong test was applied to determine the issue. The issue was not whether there was a hypothetical possibility of a purchase and sale of the commodity but whether there was sufficient proof that the product is commercially known. We fail to understand how the letter of M/s. Gharda Chemicals could in any way be stated to have supported the conclusion of the Tribunal that the product was marketable as the letter categorically states that none of the intermediates of Butachlor are marketable in India or overseas. For al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etable only because it happened to be mentioned in Chapter Note 1(a) to Chapter 29 of the Central Excise Tariff Act, 1985. 3.The Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT), however, reversed the order of the Collector holding that the goods were stable and therefore marketable. It was noted that the appellant had not brought any technical data or chemical report in support of the appellant's contention that the products were unstable or were in unfinished form. On the other hand, the department had brought on record the test report of a Chemical Examiner, according to which both the products DECA and CMBE were organic chemicals. It was said that since the sample was tested, this showed that the products were stable and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et as goods. 5.This view as has been recently reiterated in the decision of Union of India Ors. v. Sonic Electrochem (P) Ltd. 2002 (7) SCC 435 where this Court was to consider whether the plastic body of an Electro Mosquito Repellent (EMR) was liable to excise duty. In negativing the question it was held : "It may be noticed that in the cases referred to in the passage, quoted above, the reasons for holding the articles "not marketable" are different, however, they are not exhaustive. It is difficult to lay down a precise test to determine marketability of articles. Marketability of goods has certain attributes. The essence of marketability is neither in the form nor in the shape or condition in which the manufactured articles are to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e issue was not whether there was a hypothetical possibility of a purchase and sale of the commodity but whether there was sufficient proof that the product is commercially known. 9.We fail to understand how the letter of M/s. Gharda Chemicals could in any way be stated to have supported the conclusion of the Tribunal that the product was marketable as the letter categorically states that none of the intermediates of Butachlor are marketable in India or overseas. 10. For all these reasons, the decision of the CEGAT is set aside and the order of the Collector (Appeals) is restored. The security, if any, deposited by the appellant pursuant to interim orders of this Court be discharged. The appeal is allowed. There shall be no order as to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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