Marketability and captive consumption in excise: non-marketability cannot be raised first time before the Tribunal.

Untrimmed copper sheets and circles captively consumed by the assessee were treated as marketable and therefore dutiable because no material on record showed that they were incapable of sale. The note emphasises that marketability is a question of evidence and that a plea of non-marketability cannot be raised for the first time before the Tribunal when it was not argued before the lower authorities. Captive consumption alone does not negate excisability, and the earlier precedent cited was distinguished because the Department had produced no evidence there, whereas this objection had never been taken below.

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Issues: Whether untrimmed copper sheets/circles captively consumed by the assessee were marketable and therefore dutiable, and whether the plea of non-marketability could be raised for the first time before the Tribunal.

Analysis: The assessee did not raise the plea of non-marketability before either the adjudicating authority or the first appellate authority. In the absence of such a plea, it was not open to the assessee to contend at the Tribunal stage that the Department had failed to prove marketability. Marketability is a question of evidence, and a new case could not be introduced at the final appellate stage. Captive consumption by itself does not establish that goods are not marketable. The record disclosed nothing to show that the impugned goods were incapable of sale, and the Tribunal treated them as marketable. The earlier decision relied on by the assessee was distinguished on the ground that, in that matter, the Department had produced no evidence of marketability, whereas here the point had never been raised below.

Conclusion: The untrimmed sheets/circles were held to be marketable and dutiable, and the plea of non-marketability was rejected as unavailable at the Tribunal stage.

Final Conclusion: The appeal failed and the duty demand on the untrimmed sheets/circles was sustained.

Ratio Decidendi: Marketability must be disputed at the proper stage, and captive consumption alone does not negate excisability where nothing on record shows that the goods are not saleable.

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