Marketability test governs excise liability; untrimmed copper sheets were not dutiable absent proof of marketability.

Untrimmed copper sheets were found not to be excisable goods because no evidence had been produced to prove marketability, and absence of marketability meant no duty liability arose. The Tribunal also held that the later appellate authority could not depart from the Tribunal's earlier final determination on the identical issue, as treating the goods as excisable merely because they were captively consumed and not sold was contrary to judicial discipline. The impugned order was therefore set aside in favour of the assessee.

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Issues: Whether untrimmed copper sheets were marketable and therefore excisable goods liable to duty, and whether the appellate authority could depart from the Tribunal's earlier final decision on the same issue.

Analysis: The Tribunal noted that in the earlier final order it had been specifically held that no evidence had been produced to establish marketability of the untrimmed sheets, and that in the absence of proof of marketability the goods were not liable to duty. The Tribunal further held that the later appellate authority, despite the earlier final determination attaining finality, wrongly treated the same goods as excisable merely because they were captively consumed and not sold. Such deviation from an earlier binding decision on the identical issue was found to be contrary to judicial discipline.

Conclusion: Untrimmed copper sheets were not liable to duty for want of proof of marketability, and the impugned order holding them to be excisable goods was set aside in favour of the assessee.

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