Marketability as a of excisability keeps capping cement classification open while the personal penalty is set aside.

Marketability is an essential ingredient of excisability, and the Revenue must prove that the article is goods capable of being bought and sold before duty can be sustained. Capping cement was treated as a resin cement product in principle, but the record did not establish marketability, so the question of dutiability and classification was remanded for fresh adjudication. Personal penalty was not justified because the adjudicating authority had found no suppression of facts and the circumstances did not support penal action; the penalty was therefore set aside.

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Issues: (i) Whether capping cement was established to be marketable excisable goods classifiable under Heading 32.14 of the Central Excise Tariff Act, 1985; (ii) Whether personal penalty was justified.

Issue (i): Whether capping cement was established to be marketable excisable goods classifiable under Heading 32.14 of the Central Excise Tariff Act, 1985

Analysis: The product was described as a paste made by physical mixing of several ingredients and used for bonding lamp caps and glass shells. The tariff heading corresponding to resin cements was considered applicable in principle, but excisability still depended on proof that the article was marketable. The burden lay on the Revenue to adduce evidence that the product was goods capable of being bought and sold. The record did not show that such evidence had been properly led, and the matter required reconsideration on the aspect of marketability.

Conclusion: The question of dutiability and classification was not finally decided and was remanded for de novo adjudication on marketability.

Issue (ii): Whether personal penalty was justified

Analysis: The adjudicating authority itself had found no ground to allege suppression of facts, and the circumstances did not justify the penalty imposed. In the absence of a sustainable basis for penal action, the penalty could not be upheld.

Conclusion: The personal penalty was set aside in favour of the assessee.

Final Conclusion: The dispute on excisability was sent back for fresh determination on evidence of marketability, while the penalty was annulled.

Ratio Decidendi: Marketability is an essential ingredient of excisability, and the Revenue must prove that the article is goods capable of being marketed before duty can be sustained.

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