TaxTMI 
TaxTMI 
1998 (6) TMI 235
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....e which manufacture carded combed cotton etc., which is an intermediate product exempted from duty. 3. Heard learned JDR, Shri Ravinder Saroop, who submitted that the goods in question are eligible for C.G. credit only after omission of Chapter Heading 52.02 from the annexure to Rule 57Q by Notification No. 60/94 (N.T.), dated 21-10-1994. Since no retrospective effect is mentioned therein so credit is not eligible. 4. Secondly, Rule 57Q is to be read by itself (de hors) and it is not correct to resort to proviso to Rule 57-S for allowing credit prior to 21-10-1994. Therefore, Order-in-Appeal errs in allowing credit albeit after deducting 2.5% thereof per quarter up to 21-10-1994. Cited this Tribunal Final Order No. 2587/97 on Titan Industries. 5. Therefore, since the aforesaid intermediate product is exempted, credit cannot be taken as per Rule 57R(2). 6. Furthermore, in Appeal No. E/1255/96, certain other minor issues are also involved which will be considered later. 7. Learned JDR submitted that department has led evidence of sale of carded/combed cotton, so it is marketable and `goods'. Cited decision in the case of Viswabharathi Textiles ....
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....evidence of stray sales. A Single swallow does not make a spring. (vii) Name of sole selling agent mentioned in GP 1 does not override the fact that the goods were infect transported by pilot roadways to the respondents mills. He, therefore, prayed that Revenue's appeal be dismissed. 10. We have considered the arguments on both sides and records of the case. Learned JDR has cited 3 case laws, which are considered sequentially below :- (i) Order No. 2587/97 - Titan Industries of this Tribunal. We have perused it and find that it only remands the matter back to lower authority. As such no finality is obtained and it does not help the Revenue's case. (ii) Order No. 724/97, dated 12-3-1996 in E/658/95/MAS in the case of M/s. Viswabharathi Textiles Ltd. We have perused it and find that it was held therein that as appellant has not urged that carded cotton combed is non-marketable against specific findings of the impugned order, therefore, matter was remanded on other grounds. As such it is distinguishable on facts as in these appeals respondents have strenuously argued that the product is not marketable. (iii) Order No. 66/98, dated 16-3-1998 i....
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.... not the law-point itself. (vii) 1996 (81) E.L.T. 606 (Tribunal) - United Phosphorus, wherein, it has been laid down that mere mention in Tariff, Drawback Rules or Technical Books etc., does not make goods a marketable commodity. Neither side, in subject appeals, are disputing this law point seriously. Facts need to be evaluated on this issue. (viii) 1988 (36) E.L.T. 11 (Bom.) - Grentex & Co. and Others, wherein, the product held non-excisable is carded gilded sliver out of woollen fibre and is, therefore, distinguished on facts. (ix) 1996 (64) ECR 630 (Tribunal) - Jayamurugan Cotton Mills Ltd. and 1996 (84) E.L.T. 315 (Tribunal) = 1996 (64) ECR 634 (Tribunal) - Cheran Spinning Mills, wherein, Tribunal has not considered the issue on merits but merely remanded the matter back to lower authorities. It is of no help to us. 12. The issue to be considered, therefore, is basically as follows :- (a) Whether cotton combed carded sliver is `goods', being a new item which is marketable? and (b) Whether Notification No. 60/94 (NT), dated 21-10-1994 can be applied with retrospective effect, being clarificatory in nature; and (c) Whether ....
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....ge in spinning of yarn and that yarn cannot be spun otherwise directly from cotton fibre. 15. The other argument that the same machine is used for MMF also is irrelevant as long as such use is not exclusive thereto. Respondent admits that cotton fibre too is fed-in to produce cotton combed/carded. Since we hold that these are goods, they fall under 52.02. In view of that the exclusion contained in Rule 57Q is applicable and the machinery used for obtaining carded/combed cotton is not eligible for Modvat, credit under Rule 57Q up to 20-10-1994. 16. We have perused the contents of Notification 60/94, dated 21-10-1994. A plain reading thereof shows that nowhere is there any word or phrase to specify that it is clarificatory in nature or that it applies with retrospective effect. Therefore, as per settled law, we refuse to read any intendment in it and the respondent's pleas on this account fail. Respondents in their cross appeal cite some circular of the Board. This Tribunal is not bound by it and would only consider the wording of the said notification. 17. In view of the aforesaid findings, we conclude that Modvat credit on carding machine and speed frame was....