TaxTMI 
TaxTMI 
2010 (11) TMI 585
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....tively for manufacture of their final product, namely, chewing tobacco during the period from 1-4-2002 to 16-10-2002. Though during the relevant period, the payment of duties of BED, SED and AED were exempted in respect of captively consumed goods classifiable under Chapter 24 in terms of Notification No. 121/94 dated 11-8-94, no such exemption was available in respect of National Calamity Contingency Duty (NCCD) which was leviable with effect from 1-3-2001 under Finance Act, 2001 in respect of specified goods cleared and consumed captively by a manufacturer for the manufacture of final products. The exemption in respect of NCCD for captive consumption was allowed only with effect from 17-10-2002 under Notification No. 52/2002 dated 17-10-2002 which superseded the earlier Notification No. 121/94. Accordingly, a show cause notice dated 2-4-2003 came to be issued to the respondents. The respondents did not file any reply to the show cause notice nor contested the proceedings before the adjudicating authority. The adjudicating authority after considering the materials on record passed the order as stated above. Being aggrieved, the respondents filed appeal before the Commissioner (App....
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....pn. Ltd. v. C.C.E., Madurai reported in 2004 (166) E.L.T. 433 wherein it was held that the product having shelf life of 8 to 10 hours are considered as marketable and hence chargeable to duty. Secondly, the Commissioner (Appeals) erred in ignoring that the exemption to NCCD was not available for the relevant period as there was no notification granting such exemption. Thirdly, the Commissioner (Appeals) erred in holding that the situation was not of revenue neutral. 8. The Departmental Representative placing reliance in the decision in the matters of Gopal Zarda Udyog v. C.C.E., New Delhi reported in 2005 (188) E.L.T. 251 (S.C.), T.N. State Transport Corpn. Ltd. v. C.C.E., Madurai reported in 2004 (166) E.L.T. 433 (S.C.), Paras Petrofils Ltd. v. C.C.E., Surat reported in 2009 (237) E.L.T. 367 (Tri-Ahmd.), Khatri Kimam Co. P. Ltd. v. C.C.E., Lucknow reported in 2010 (253) E.L.T. 157 (Tri-Del.) and Dharamapal Satyapal v. C.C.E., New Delhi reported in 2005 (183) E.L.T. 241 (S.C.) and drawing our attention to the Notifications No. 121/94 and 52/2002 submitted that the Commissioner (Appeals) totally misconstrued the relevant provisions of law comprised under the relevant notific....
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..... Indeed, it is only on this ground itself, the Commissioner (Appeals) has held that the product cannot be considered to be marketable and therefore, not excisable. The reliance placed in that regard in the Board Circular relating to agarbathi mix for use in the manufacture of Agarbathi. 12. The law on the point of marketability of a product is well settled. It has been clearly held by the Apex Court that merely because a product is not carried to the market that itself will not be a criteria to pronounce the product to be non-marketable. It is also not necessary that the product should have more than one purchaser for consumption. Even a single consumer can determine the product to be marketable. It is not actual marketing of a product that would decide whether the product is marketable or not but its possibility of the product can be marketed which factor assumes importance while deciding the issue of marketability of a product. 13. The Apex Court in T.N. State Transport Corpn. case has also held that the product which has shelf life of 8 to 10 hours is enough to consider the same as marketable product. Similarly, in Dharampal Satyapal case, the Apex Court held th....
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....xcise duty under the said Act. 17. Besides, the question of grant of exemption depends upon the phraseology used in the notification dealing with the subject of exemption. The Tribunal or any authority under the said Act cannot extend or abridge the scope of exemption under any exemption Notification. This has been clearly explained in the decision of the Tribunal in the matter of Khatri Kimam Co. P. Ltd. 18. The finding about the availability of NCCD exemption, therefore, cannot be sustained. 19. As regards the last point for consideration, the Departmental Representative is justified in contending that each and every situation cannot be termed as a revenue neutral situation. It would depend upon the facts and circumstances of each case. He is also justified in contending that failure on the part of an assessee to clear the duty in the time when it becomes due and payable results not only in the loss relating to principal amount of duty but also to interest which may accrue on such duty amount. Being so if the duty was required to be cleared on January 2008, on account of litigation, the payment was delayed merely because, on that day, the appellant had som....
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....llows from the various observations made in the Judgment. Every Judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of the judgment in relation to the subject matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It is only the principles laid down in the judgment that is binding law under Article 141 of the Constitution. A deliberate judicial decision arrived at after hearing an argument on a question which....