Marketability burden in excise classification defeated duty on captive-consumed bituminous mixture

Bituminous mixture used for captive consumption was held not to be exigible on the record because marketability was not proved. The product was made in a continuous hot process, solidified on cooling, and could not be reused after remelting; on that material, the Tribunal found no evidence that it was capable of being bought and sold. The Department failed to discharge the burden of showing that the mixture was marketable, so classification under sub-heading 2715.90 did not result in duty liability on the facts before the Tribunal.

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Issues: Whether bituminous mixture manufactured for captive consumption was excisable and classifiable under sub-heading 2715.90 of the Central Excise Tariff Act, 1985 despite the plea of non-marketability.

Analysis: The product was used in a continuous hot process, solidified on cooling, could not be reused after remelting, and there was no material to show that it was marketable. The Department did not discharge the burden of proving that the product was capable of being bought and sold.

Conclusion: The bituminous mixture was not shown to be marketable and, therefore, was not exigible to duty on the record before the Tribunal; the appeal was rejected.

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