9911796707
TMI Blog2002 (4) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... intermediate product in the manufacture of poly-bags from plastic granules; that the impugned goods were exempted from payment of excise duty right from 1994-95 till today except for the financial year 1997-98; that the Additional Commissioner under the Adjudication Order No. 170/99, dated 7-10-1999 has demanded the duty in respect of Lay Flat Tubing cleared during the period from 1-4-1997 to 31-12-1997 and imposed penalty of Rs. 50,966/- equivalent to the amount of duty under Rule 173Q of the Central Excise Rules, read with Section 11AC of the Central Excise Act; that the Commissioner (Appeals) under the impugned Order has confirmed the demand and the penalty. He, further, submitted that the entire demand is time-barred as the show cause n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... djudicating Authority has not established that the impugned goods are marketable products as known in the market and as such duty cannot be levied. He also contended that the value of the product has been wrongly worked out in the Adjudication Order, that as per the show cause notice the total clearance value of the finished goods (poly-bags) exceeded the admitted value of clearance of Rs. 40 lakhs by Rs. 6,98,853.50 which worked out to be 14.87% of the value of the clearances; that the show cause notice allows abatement of 14.87% from the aggregate value of clearances towards cutting, printing, and packing charges incurred in the manufacture of poly-bags; that after allowing such abatement the aggregate value of clearance of the impugned g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of excise duty, and therefore, provisions of Section 11A are applicable for invoking the extended period of 5 years for the purpose of demanding excise duty; that in spite of such specific finding in the Adjudication Order the Appellants did not challenge the invokability of extended period of limitation in their appeal before the Commissioner (Appeals); that accordingly they cannot, at second appeal stage, raise the plea of time limit by pleading legal plea; that the decision in the case of Hiper (supra) is not applicable as the facts are different since in the said matter the plea of time limit was raised before the lower Appellate Authority; that the decision in the case of Pioma Industries is also not applicable as the issue involved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present matter being different. The learned DR has rightly distinguished the decision in the case of CCE v. Hiper (supra). We also agree with the learned DR that there was no occasion for the Adjudicating Authority to adduce any evidence about the marketability of the impugned product as the Appellants neither filed any reply nor attended any of the personal hearings fixed by the Adjudicating Authority. In appeal they have merely stated that the impugned goods being an intermediate product is not marketable. It is settled law that it is not essential that a product should actually be brought to the market for being bought and sold. It is sufficient that the product should be capable of being marketed. There is nothing brought on record by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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