TaxTMI 
TaxTMI 
2010 (11) TMI 36
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....able to duty. 2. The present appeal filed by the appellant - assessee herein under Section 35L(b) of the Central Excise Act, 1944 (hereinafter referred to as 'the Act') arises out of an order dated 16.05.2002 passed by the Customs, Excise Gold Control Appellate Tribunal, West Zonal Bench at Mumbai (hereinafter referred to as 'the CEGAT') in appeal No. E/2404/96-Bom holding that "crude vitamin A" is marketable and hence liable to duty. 3. The appellant - assessee is engaged in the manufacture of Vitamin A in a finished and marketable form. These are cleared on payment of applicable excise duties under Heading 29.36 of the Schedule to the Central Excise Tariff Act, 1985. The assessee is also engaged in the manufacture of animal ....
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....Rovimix and Rovibe. It is also known in different pharmacopoeia as such. Merely because the company has not sold the product does not exclude it from the purview of commercial marketability. It has to be kept in an oxygen free environment to prevent oxidizing by other agents which similarly is the case in many drugs and chemical compositions. The fact that it has no standard specification and potency does not exclude it from distinct commercial entity as it still remains Vitamin A acetate and Vitamine A Palmitate. Apart from the aforesaid the Tariff head 2936.00 of Central Excise Tariff Act, 1985 covers "Provitamins and Vitamins, natural or reproduced by synthesis (including natural concentrates), derivatives thereof used primarily....
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....nd that such demand is untenable and unjustified inasmuch as the said product cannot be termed as "goods" and is incapable of being marketed, particularly in view of the fact that the life of the item would not be more than two days. He also submitted that the burden to prove the "marketability" of a product would always rest on the respondent and that the department has failed to lead any evidence indicating its capability of being marketed, particularly owing to the fact that it is unstable if it is not stored in sub-zero degree centigrade. He also submitted that the anti-oxidants which are needed to give stability to the product are not added to the crude vitamin A separately but are added to crude vitamin A simultaneously along with oth....
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....ocesses which may not be termed as 'manufacture' in the common parlance. But manufacture of goods alone is not enough. In order to attract the levy of excise duty, the goods should not only be manufactured, i.e., come into existence, but also should be articles or products that are known to the market and must be capable of being brought and sold. Some emphasis has to be laid on the use of the word capable as actual sale of the product or article is not essential and required. This has been settled in a number of authorities of this Court and no longer res integra. There cannot be any doubt that intermediate products, even if captively consumed and not actually sold, may be liable to levy of excise duty if they satisfy the test of both ....
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....ling with a question of fact, this Court should be reluctant in interfering with concurrent findings of fact on the issue of marketability unless it is shown that the said finding is perverse or patently illegal. 13. One of the arguments placed by the Counsel for the Appellant is that the product in question does not have shelf-life and hence cannot be said to satisfy the test of marketability. The said argument is contradicted by the evidence adduced by the Appellant themselves. It has been brought on record by the Appellants themselves that the product has a shelf-life of 2 to 3 days. Short shelf-life cannot be equated with no shelf-life and would not ipso facto mean that it cannot be marketed. A shelf-life of 2 to 3 days is sufficient....