Marketability governs excise duty on recovered caprolactam; absence of proof that it could be marketed defeated liability.

Excise duty on recovered caprolactam depended on marketability, not merely manufacture or tariff description. The record showed the molten caprolactam recovered from waste in nylon yarn manufacture was treated by the assessee as not saleable, and the excise authorities led no evidence to prove that it was known to the market or capable of being marketed. On those facts, and in line with earlier tribunal decisions on identical evidence, the product was held not excisable. Remand was refused because the Department had already failed to establish marketability.

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Issues: Whether recovered caprolactam obtained from waste in the manufacture of nylon yarn was liable to excise duty despite the absence of proof that it was marketable.

Analysis: Liability to excise duty depends not merely on manufacture or the fact that an article is mentioned in the tariff, but also on whether the product is goods known to the market and capable of being marketed. The record showed that the recovered caprolactam in molten form was treated by the assessee as not saleable, while the Excise authorities did not adduce evidence to establish marketability. Earlier Tribunal decisions on identical facts had accepted the absence of marketability on the assessee's evidence and the Department's failure to rebut it. In these circumstances, no purpose would be served by remanding the matter for a second opportunity to lead evidence on marketability.

Conclusion: The recovered caprolactam was not excisable to excise duty, and the assessee succeeded.

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