TaxTMI 
TaxTMI 
1996 (10) TMI 162
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....racter of the tubes out of which the flare is made remains the same and no new item comes out of which could be subjected to excise duty. It was submitted by them that the flare which comes out of these tubes is a crude item which is unfinished and as these are not marketable nor it is marketed; and that tube out of which the flare is made was at the relevant time classifiable under Tariff Item 23A(4). According to them the item in question continues to be classifiable under 23A(4) and even if it is a different product it cannot be classified under 23A(4) but falls under 68. The contentions of the party were negatived by the adjudicating authority holding that the tube itself is a finished item. The flare which is made out of that tube is a....
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....isable. While taking that view he observed that the product flare had already been in the form of glass known as glass tube by application further processes on such tubes to convert them into flare, the basic glass does not ceases to be glass or to that matter of glass tube. He observed that the only modification achieved by application of the process is creation of a flare at one of the ends of the tube cut into pieces or required size. Further he held that flare is not marketable and is also not a commodity available in the market anywhere for being bought and sold, no such evidence having been let in by the department. In the absence of such evidence, the comparison is incorrect and not acceptable. As regards classification of the produc....
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....at 1981 E.L.T. 325 (SC) wherein it was held that it is true that according to dictionary meaning the expression 'glassware' is 'articles made of glass' but in commercial sense glassware would not consist of articles like clinical syringes, thermometers, lactometers and the like which have special significance and utility. Thus, in popular parlance, a general merchant dealing in glassware does not ordinarily deal in articles like clinical syringes which though made of glass, are normally available in medical stores or with the manufacturers thereof. He submitted that on the same analogy, the item as such cannot be treated as glassware. Further, he submitted that it was neither marketed as such nor capable of being marketed. The burden square....
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....item was not excisable. Now it is settled position that excisability is subject to marketability of the item. The burden lies on the department to prove whether item as such was marketed or capable of being marketed. Mere statement or arguments advanced on behalf of the Revenue that the similar item was manufactured by other manufacturers itself is not sufficient to hold that item as such is capable of being marketed. Further, the Asstt. Collector has given a clear finding that the product is never sold or cleared outside their factory and is not commercially known as flare not it is sold or purchased by anybody as flare. He also observed that in other words that tube in crude or elementary form used in the manufacture of electric bulbs and....