2003 (5) TMI 332

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....ppellants manufacture Polyester Fabric for which the principal raw material is Dimethyl Terephthalate (DMT); that during the course of manufacture of Polyester Fibre certain wastes are generated which are re-cycled and DMT is obtained in molten form known as recovered DMT; that DMT so recovered is in the molten form having temperature over 250º C and as such is not capable of bought or sold in the said form; that accordingly recovered DMT is not goods attracting levy of Central Excise duty in view of the judgment of the Supreme Court in the case of Bhor Industries Ltd. v. CCE - 1989 (40) E.L.T. 280 (S.C.), wherein it has been held that the marketability is an essential condition for excisability; that this Tribunal also in the case of ....

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....ape or condition in which the manufactured articles are to be found, it is the commercial identity of the articles known to the market for being bought and sold. The fact that the product in question is generally being bought and sold or has no demand in the market would be irrelevant". He, further, contended that the similar views were held by the Supreme Court in the case of Andhra Pradesh State Electricity Board v. CCE, Hyderabad, 1994 (70) E.L.T. 3 (S.C.), wherein it has been held that, So long as the goods are marketable they are goods for the purpose of Section 3. It is also not necessary that the goods in question should be generally available in the market -----. The marketability of articles does not depend upon the number of proce....

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....abliser or Retarder was not added by the manufacturer which would have made the said product marketable. It was observed by the Supreme Court that it cannot be said that the goods were marketable or capable of being marketed. Similar is the situation in the present matter as there is nothing on record to show that DMT in molten form having a temperature of 250ºC is capable of being brought to the market for being bought and sold. The mere fact that DMT in powder form is available in the market is not sufficient to hold the impugned product marketable. This was also the view of the Tribunal in the case of Jagjit Cotton Textiles, wherein the Tribunal had considered the exciseability of recovered caprolactum. In the said matter the appell....