1995 (6) TMI 96

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....ector of Central Excise, Kalyan Division III, Bombay-III Collectorate by his order dated 26-5-1987 held that DABP at intermediate stage is classifiable as other organic compound under sub-heading 2913.00 Central Excise Tariff Act. He overruled the appellants contention that at that stage DABP is in crude from and not goods at all since it is not marketable at crude stage. They had also in this regard produced an affidavit from one Dr. R. Maheshwari who said that crude DABP is different from purified DABP and that DABP in its crude form which is used for captive consumption in manufacture of Mebendazole is a product which cannot be bought and sold in the market. The Assistant Collector in repelling these contentions invoked Rule 2 of the Rul....

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....ly consumed satisfied the test of marketability is a rebuttable presumption, and can be rebutted if it is established that the article produced and captively consumed was neither goods not marketable nor capable of being marketed. Even in respect of goods specified in the tariff, the Supreme Court held, it could be established that it was not marketable or capable of being marketed, therefore, no duty was leviable on it. The learned Consultant also relied upon the Tribunal majority decision in the case of TISCO v. Collector of C. Ex., Jamshedpur, reported in 1995 (76) E.L.T. 602 (Tri.) that marketability is essential for determining dutiability of any article and that specific entry in the Tariff covering that article by itself is not concl....

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....fers from erstwhile Central Excise Tariff in that under Central Excise Tariff, item has to be read by itself for its interpretation whereas Central Excise Tariff Act, 1985 contains rules for its interpretation which require that "for legal purposes classification shall be determined according to the terms of the headings and any relative section or Chapter Notes.......". In the present case the Department has classified DABP under such Heading 2913.00 in Chapter 29 of Central Excise Tariff Act, 1985 "other organic compounds". The appellants main contention is that DABP in the intermediate stage is in crude form and that the saleable DABP is the one which has undergone the process of purification. But we find that Chapter Note 1 to Chapter 2....