2004 (3) TMI 492

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....pellants, a composite textile mill, are engaged in spinning, weaving, and processing of different types of yarns and fabrics; that after the decision of the Delhi High Court in the case of J.K. Cotton Spg. & Wvg. Mills Co. Ltd. v. UOI [1981 (8) E.L.T. 887 (Del.)] to the effect that yarn obtained and further processed within the factory for manufacture of fabrics would not be subjected to Excise duty the Appellants also claimed that the Central Excise duty is not payable on yarn as the same was not removed from their factory premises; that as the department was not allowing them the benefit of the decision of Delhi High Court in J.K. Cotton Spinning & Weaving Mills Co. Ltd. they also filed a writ petition and obtained an interim order for pa....

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....e Appellants is that it is not wound on cones as for captive consumption it is wound only on cheese; that it means as far as quality, body, texture, appearance and other properties are concerned both types of the yarn are the same; that the difference is only of packing otherwise both the yarns could be used for weaving; that the packing does not make the yarn non-marketable as in the case of captive consumption it is not required to wound the yarn on paper cones. He relied upon the decision in the case of A.P. State Electricity Board v. CCE, Hyderabad, 1994 (70) E.L.T. 3 (S.C.) wherein it has been held that "the marketability is thus essentially a question of fact to be decided in the facts of each case. There can be no generalization. The....