TaxTMI 
TaxTMI 
2011 (4) TMI 675
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....about the number of each of the appeals with reference to the date of show cause notice, the period for which they relate to, the dates of the original orders and those of the lower appellate authority's orders and the amount involved in each of the matters are as under : - Sl. No. Appeal No. SCN date Period of Dispute OIO & OIA dates Demand in rupees 1. E/2214/02 7-8-2001 1-7-1996 to 31-12-2000 OIO dated 7-6-2002 Duty : 2,01,26,595 Penalty 2,01,26,595 2. E/181/04 6-2-2002 1-10-2002 25-4-2003 1-10-2001 to 31-3-2002 1-4-2002 to 30-9-2002 OIO dated 29-9-2003 After remand Duty : 73,61,677 Penalty : 73,61,677 E/2820/05 OIO dated 10-12-2004 AND Duty : 42,60,312 Penalty : OIO dated 16-5-2005 15,00,000 3. e/550/05 27-4-2004 1-4-2003 to 31-12-2003 OIO dated 24-6-2004 AND OIA dated 26-10-2004 Duty : 37,38,868 Penalty : 15,00,000 4. E/4370/04 2-9-2003 1-10-2002 to 31-3-2003 OIO dated 31-1-2003 OIA dated 29-4-2004 Dut....
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....he requirement of particular vitamin contents to be present in the finished product, the various vitamins so procured are mixed in a pre-determined ratio with the help of electro mechanical device by effecting uniform dispersion of liquid, semi-solid or solid ingredients of mixture by means of mechanical agitation, and the product so obtained is called intermixture of vitamins. Such product is stored by the assessees in plastic drums/aluminium bottles in their factory. In order to identify the particular intermixture of vitamins which are used in a particular grade of the finished product, a sticker is affixed on the drums/aluminium bottle containing intermixture of vitamins giving details regarding the contents of the drums/aluminium bottles. These intermixture of vitamins are used in the manufacture of infant foods. 6. As regards the earlier order of the Tribunal the Hon'ble Supreme Court has observed that the same was cryptic and did not deal with the points which were specifically raised by the assessee. While formulating the questions for determination as quoted above, the Hon'ble Apex Court had held thus : "As stated above, the vitamins A, Vitamin D, Vitamin E etc.....
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.... being manufactured for the freshness and was of one time use. On the basis of the said two imports, it cannot be concluded that the intermixtures in question factory were marketable goods. Reliance is placed in the matter of Syam Oil Cake Ltd. v. C.C.E., reported in 2004 (174) E.L.T. 145 (S.C.), C.C.E. v. Markfed Vanaspati & Allied Indus. reported in 2003 (153) E.L.T. 491 (S.C.) and Crane Betel Nut Powder Works v. C.C.E., Tirupathi reported in 2007 (210) E.L.T. 171. 8. On the other hand, the Joint CDR after taking us through the definition of the term 'manufacture' under Section 2(f) and various paras of the show cause notices issued to the appellants describing the activity in relation to the product in question submitted that the said process clearly discloses the activity of mixing of the individual vitamins in proper proportions in such a manner that the resultant product is complete intermix of all those vitamins as desired by the assessee. The individual products which are mixed are specifically identified and known individually by its character and components and are individually known by particular name of vitamin such as vitamin A, vitamin D, vitamin E etc. and th....
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.... as defined under Section 2(f) of the said Act. Therefore, the contention about absence of such allegation in the show cause notice or finding to that effect in the impugned order is of no consequence .The Tribunal is bound by the order of the Supreme Court and the scope of the inquiry and the adjudication has to be within the parameters prescribed by the Hon'ble Supreme Court under the remand order for consideration by the Tribunal. 10. Even otherwise, suffice to observe that the contention is not borne out from the records. The facts relating to the activity of mixing of vitamins and the result thereof were precisely stated in the show cause notices issued to the assessees. It was clearly stated in the show cause notice that the required vitamins were mixed in pre-determined ratio with the help of electromechanical device such as mixture/Blender by effecting a uniform dispersion of liquid, semi-solid or solid ingredients of mixture by means of mechanical agitation. It was also specified in the show cause notice that "when different vitamins are mixed in certain proportions then the original property of a particular ingredient is lost and is mixed with properties of other ....
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....sultant product is a mixture of all those characteristics together with a distinct identity and use. As far as the use is concerned, undoubtedly, each vitamin product has different use as each vitamin is consumed to overcome or to remedy the specific deficiency in the human body. In the case of intermixture of vitamins, the same is not meant to overcome any one deficiency but it is meant to deal with the problem of multifarious deficiencies in the human body at one and the same time. Obviously, therefore, the function of each vitamin is different from the function of intermixture of vitamins. Consequently, the use of each vitamin is different from the use of intermixture of vitamins. The identity of each vitamin differs from the intermixture of vitamins. Each vitamin is known by specific category of vitamin to which it belongs to. If it belongs to A category, it would be vitamin A, if it belongs to D category, it would be vitamin D and the like. In the case of intermixture of vitamins, it is known as the intermixture of vitamin or vitamin mix and not by individual name of any one or more of vitamins. All these facts are neither denied nor disputed. Being so, the fact that the produ....
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....and circumstances of each case. 16. While explaining as to how to understand the change in original identity of the product, the Delhi High Court in Metal Forgings Pvt. Ltd. after taking note of the decision in Tata Yodogwa Ltd. v. Assistant Collector of Excise reported in 1983 (12) E.L.T. 17 (Patna), Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes), Ernakulam v. Pio Food Packers reported in 1980 (6) E.L.T. 343 (S.C.), Chowgule & Co. Pvt. Ltd. and Anr. v. Union of India and others reported in (1981) 1 SCC 65 = 1993 (67) E.L.T. 34 and P.C. Cheriyan v. Mst. Barfi Devi reported in 1979 (4) E.L.T. J593, warned that "even processing of pineapple fruit and canning them it still retains its original identity of pineapple fruit (Pio Food case, supra), even after blending of ores, it still remains ore (Chowgule's case, supra), the retreated tyres still remain tyres (P.C. Cheriyan case, supra). 17. The Delhi High Court after taking note of various judgments of the Supreme Court and referring to the facts of the case in Metal Forgings Pvt. Ltd. held thus - "Flanges cannot be properly called 'shapes and sections'. There is no substance in the contention that ....
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....it of the said definition by the Parliament. Not only processes which are incidental and ancillary to the completion of manufactured product but also those processes as are specified in relation to any goods in the section or chapter notes of the Schedule to the Central Excise Tariff Act, 1985 are also brought within the ambit of the definition. As has been repeatedly observed by the Court, though the principles enunciated are clear, it is their application that presents difficulties and it does not help to draw 'any sharp or intrinsic distinction between 'processing' and 'manufacture', 'which would only result in an oversimplification of both and tends to blur their interdependence in cases such as the present one" (Ujagar Prints). It would also be not right, as pointed out in Ujagar Prints to try to restrict the sweep of the definition with reference to Entry 84 List-I of the Seventh Schedule to the Constitution. Since the constitutionality of the said definition has been repeatedly upheld with reference to both Entries 84 and 97 of List-I (Empire Industries and Ujagar Prints), the definition must be understood in terms it is couched. It should also be remembered that the questio....
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....oys were then converted into billets. These billets were thus of two kinds, viz., of kansi and of brass. These billets were then sent to the agents who run a rolling mill and the rolling mill used to roll the billets into uncut circles. Subsequently, they were trimmed and after further work on them, they were converted into utensils and sold as such in the market. The Department sought to impose duty at the stage when the rolling mills prepared circles from billets. It was objected on the ground that the circles were prepared without undergoing any change as such to hold it amounts to manufacture. It was the contention on behalf of the assessees that conversion of billets into circles did not bring any new substance into existence, nor did it bring into existence any completed product, and hence there was no process of manufacture which could render the article liable to excise duty. The contention was rejected being based on misunderstanding of law. It was specifically held that :- "The word 'manufacture' is defined in Section 2(f) of the Act as including any process incidental or ancillary to the completion of a manufactured product. The rolling of a billet into a circle is ce....
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.... reported in 1983 E.L.T. 1582. 25. In Devi Dass Gopal Kushum v. State of Punjab reported in (1967) 20 STC 430 (S.C.) it was held that when the iron scrap is converted into rolled steel, the same undergo a vital change in the process of manufacture and are converted into a different commodity. 26. The Apex Court in Shaw Wallace & Co. v. State of Tamil Nadu reported in (1976) 37 STC 523, approving the High Court decisions in Imperial Fertilizers & Co. and Rolling India Ltd. and relying upon its earlier decision in Pyare Lal Malhotra held that "fertilizer mixture is not the same article as the ingredients comprising it. It is sold as a different commercial product. It is put to a different use as has different chemical properties. As such, it has to be treated as a different article from its component parts". 27. In Goyal Gases Private Ltd. v. C.C.E., Meerut reported in 2000 (115) E.L.T. 467 and C.C.E., Meerut v. Goyal Gases Private Ltd. reported in 2000 (119) E.L.T. 5 (S.C.), the process of mixing of oxygen and nitrogen was held as not amounting to manufacture because of absence of evidence to establish that it amounted to manufacture. The said decision was fo....
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....uct leaving a distinct name, character and use, and therefore, the process amount to manufacture under the meaning of the Section 2(f) of the said Act. 33. In Nestle India Ltd. v. Collector of Central Excise, Chandigarh reported in 1994 (71) E.L.T. 850, the Tribunal held that the mixture of coffee and chicory cannot be called by individual name of either coffee or chicory and the appeal filed against the said decision was dismissed by the Apex Court reported in 1995 (76) E.L.T. A 233 (S.C.). 34. In A.P. Products v. State of Andhra Pradesh reported in 2007 (214) E.L.T. 485, it was held by the Apex Court that in the process of grinding and mixing of ingredients to prepare masala powder, the ingredients thereof lose their own identity and character in the final product that emerges and therefore, the process amounts to manufacture within the meaning of the said expression under the said Act. 35. The Apex Court in Aspinwall & Co. Ltd. v. Commissioner of Income Tax, Ernakulam reported in 2001 (133) E.L.T. 18 (S.C.) while observing that if the activity or process brings out a complete transformation in the input material so as to produce a commercially different a....
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....rinciple, the activity undertaken by the assessee is nothing but the manufacture. 40. The next question which arises for consideration is whether such a product is marketable one. In this regard, it is the contention of the appellants that there is absolutely no evidence placed on record by the Department and therefore, the same should be answered in negative. On the other hand, the Department's case is that the product is captively consumed by the appellants and that it has shelf life that it is fact that there was import of similar product for similar use by the appellants, coupled with total absence of rebuttal evidence in that regard by the assessee, and further corroborated by the statements of the officer's of the appellants and all these materials on record sufficiently prove that the product is commercially known to the market. 41. Undoubtedly, the burden to prove the issue of marketability lies upon the Department. But the mode of discharging this burden may not necessarily be by producing evidence in that regard by the department itself. Time and again, the Tribunal and the various other Courts have held that when the burden lies upon a party to prove any ....
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....p;Each of the above narrated facts, by itself may not be sufficient to establish the issue of marketability. But when all the above facts considered in totality, the same evidently disclose the marketability of the product in question. It is more so when on taking stock of the decisions hereinafter considered and applied to the said facts in totality. 47. In Union of India v. Sonic Electrochem Pvt. Ltd. reported in 2002 (145) E.L.T. 274 it was held by the Apex Court that the essence of marketability is neither in the form nor in the shape or condition in which the manufactured articles are to be produced. 48. In Gillooram Gaurishanker v. C.C.E., Jamshedpur reported in 2001 (136) E.L.T. 434 it was held by the Tribunal that the marketability is essentially to be looked into for holding the excisability of the product, however, it is not the factum of actual marketing of the product which is required to be satisfied. As long as the goods are capable of being marketed, they have to be held as excisable goods. In the said case it was held as under :- "The appellants are engaged in the manufacture of Aluminium Conductors (A.A.C.) and Aluminium Conductor Steel Reinforce....
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....tion of the appellants that such Wire Rods are not marketable and hence cannot be considered as excisable goods. We find that the Aluminium Wire Rods are covered by a specific sub-heading: 7604.10 of the Schedule to Central Excise Tariff Act, 1985. There is no definition of Wire Rods in the Tariff. The appellants have referred to various decisions of the Hon'ble Supreme Court as also of the Tribunal in support of its submission that marketability is the essential criterion for holding any item leviable to duty of excise. We find that there can be no quarrel about the above legal proposition. Marketability is essentially to be looked into for holding the excisability of the product. However, it is not the factum of actual marketing of the product, which is required to be satisfied. But as long as the goods are capable of being marketed, they have to be held as excisable goods. In the instant case, admittedly, the appellants are themselves manufacturing the Wire Rods from the Ingots. These Wire Rods are stored by them and ultimately, issued for the manufacture of Aluminium Wires, as observed by the adjudicating authority. The appellants are also sending the Aluminium Ingots to their ....
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.... Even if there is only one purchaser of these articles, it must still be said that there is a market for these articles. The marketability of articles does not depend upon the number of purchasers nor is the market confined to the territorial limits of this country. The appellant's own case before the excise authorities and the CEGAT was that these poles are manufactured by independent contractors from whom it purchased them. This plea itself - though not pressed before us - is adequate to demolish the case of the appellant. In our opinion, therefore, the conclusion arrived at by the Tribunal is unobjectionable." The said decision of the Tribunal was confirmed by the Apex Court while dismissing the appeal against the same which is reported in 2006 (204) E.L.T. A88 (S.C.). 49. In Collector of Central Excise, Bombay v. Kohinoor Mills reported in 1995 Supp (2) SCC 411 = 1995 (77) E.L.T. 42 (S.C.), taking into consideration Rule 9 of the Central Excise Rules relating to the subject of time and the manner of payment of duty, the Apex Court held that it makes clear that if a manufactured item covered by the charge of excise duty by the charging provisions of the Central Excise....
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....of being sold in the market as goods. Actual sale in the market is not necessary, user in the captive consumption is not determinative but the articles must be capable of being sold in the market or known in the market as goods. That was necessary." The appellants themselves have called the goods "Tie Bar Nuts" and those are admittedly used for fixing platens at appropriate distances. It cannot be said that the Tie Bar Nuts after their manufacture did not constitute goods; their actual sale in the market was not necessary. In M/s. Ujagar Prints and Ors. v. Union of India and Ors . - 1989 (39) E.L.T. 493 (S.C.) = (1989) 3 SCC 488, it has been held that excise duty is levied on manufacture and production of goods and the liability to pay such duty is not dependent on whether the manufacturer is the owner or not. The question whether the producer or the manufacturer is or is not the owner of goods is not determinative of the liability. 52. The Larger Bench of the Tribunal in Mahindra & Mahindra v. C.C.E., Aurangabad, Chandigarh , Kanpur & Chennai reported in 2005 (190) E.L.T. 301 after taking note of the various decisions including the decision delivered by the Apex Cour....
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....ct known to the market. 57. The Apex Court in Union of India v. J.G. Glass Industries Ltd. reported in 1998 (97) E.L.T. 5 (S.C.) held that two fold test to decide that the process is a manufacture or not is that whether by the said process a different commodity comes into existence and whether the identity of the original commodity cease to exist. 58. In Commissioner of Central Excise, Chandigarh-I v. Markfed Vanaspati & Allied Indus. reported in 2003 (153) E.L.T. 491 (S.C.) , the Apex Court had rejected the contention that merely because an item falls in the Tariff Entry it must be deemed that there is manufacture. 59. In Crane Betel Nut Powder Works v. C.C. & C.Ex, Tirupathi reported in 2007 (210) E.L.T. 171 (S.C.), the Apex Court had held that crushing betel nuts into smaller pieces and sweetening the same with essential/non-essential oils, menthol, sweetening agents etc. did not result in manufacture of a new and distinct product having a different character and use as end product continues to retain its original character though in a modified form. 60. The Apex Court in Board of Trustees case was dealing with the question as to whether the cemen....
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....eals), the authority held the product to be marketable on the ground that the product was transported from the factory at Bangalore to Patalganga and it had shelf life. In those circumstances, it was held that in the absence of any evidence regarding marketability or capable of being marketed, the issue of marketability could not be said to have been established. 63. In Cadila Laboratories Pvt. Ltd. case, it was clearly ruled that the expression "marketable" does not mean that the goods must be actually bought and sold in the market. The goods must be capable of being bought and sold in the market. The law also is that the goods which are in crude or unstable form and which require a further processing before they can be marketed cannot be considered to be marketable goods merely because they fall within the schedule of the Tariff Act. It was specifically recorded that the Department had made no efforts to ascertain whether any of the intermediate product was available in the market, even if available whether or not the product available in the market are the same as produced by the assessee and none of the intermediate product manufactured by the assessee were analysed by ....
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....tly construed more particularly in view of the fact that the same seek to extend to levy. It is further contention on behalf o f the assessee that the show cause notice involved the first portion of the note, but it was given up by the Commissioner while passing of the order and confirming the demand on the basis of second part of the note. It is the contention on behalf of the appellants that second part of the Note deals with the situation where a treatment will render the product marketable to the consumer. It presupposes the product to be not suitable to be marketed and therefore, requires the treatment to make it marketable. In this regard, the attention is sought to be drawn to the word 'render' in the second part of the said Note. It is the contention on behalf of the assessee that the term 'render' implies that before treatment, the product was not marketable to the consumer and it is only due to the process undergone that the product is rendered marketable to the consumer. To make good this submission, attempt is made to redraft the second sentence of the note to the affect that 'any treatment to render the product not marketable to the consumer shall not amount to manufac....
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....sions relied upon are sought to be distinguished on behalf of the Department, while placing reliance in the decision in C.C.E. v. Phil Corporation Ltd. reported in 2008 (223) E.L.T. 9 (S.C.), S.K.B. Dryfruits Marketing Co. Ltd. v. C.C.E. reported in 2008 (224) E.L.T. 339 (S.C.). 69. It is settled law that while interpreting a provision creating legal fiction, one has to ascertain the purpose for which the fiction is created and after ascertaining the same while understanding the scope of the fiction, it is expected to assume all those facts and consequences, which are incidental or inevitable corollary to give effect to the fiction, provided that it should not extend beyond the purpose for which it is created, nor should travel beyond the language used in the provision of law by which the fiction is created. Having ascertained the purpose, full effect must be given to the fiction and it should be carried to its logical conclusion. In the words of Lord Asquith in East End Dwelling Co. Ltd. v. Finsburry Borough Council reported in (1951) 2 All E.R. 587, it can be said that "if you are bidden to treat imaginary state of affairs as real, you must surely, unless prohibited from ....
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.... product as and when required would amount to treatment rendering the product marketable to a consumer. The Note uses four expressions namely, "any other treatment", "rendering", "marketable", and "consumer". The term "treatment" signifies a process by which someone would deal with something. The term "rendering" implies giving or providing or performing something. The word "marketable" discloses suitability of the product being bought and sold. The term "consumer" means a person or thing that eats or uses something. These are the dictionary as well commonly understood meaning of the concerned terms used in the said Note. 72. It is the contention on behalf of the appellants that proper reading of the Note would disclose the term "rendering" implies that the product must not be marketable to the retail consumer prior to the treatment. The arguments in support of this contention is that the crucial requirement of the last portion of the said note is the non-marketability status of the product prior to adoption of the treatment and the process undertaken by the appellants in relation to the product in question does not satisfy the same. 73. Plain reading of the Note di....
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......" One should not forget that the said Chapter Note is intended to enlarge the scope of the term "manufacture" in relation to certain processes which normally would not fall within the ambit and scope of the said term in respect of the products enumerated under Chapter 29 and it does not deal with the term 'marketability' thereof. The word 'marketable' has been essentially used to describe the purpose of the treatment which would result in manufacture which otherwise would not fall within the ambit of the definition of the said term. 76. The Importers (Control) Order, 1955 was issued consolidating all the relevant orders in one place while repealing of previous orders and it provided all the licenses under repealed orders were to be deemed to have been issued under the new order. The Apex Court in State of West Bengal v. Motilal Kanoria reported in AIR 1966 SC 1586 held that the deemed condition of licence under the new order became also the condition of licence issued under the repealed order deemed to be issued under the new order. While interpreting the fiction created under the Income Tax Act, 1922 whereby Section 43 provided under certain circumstances, an agent for a....
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....o other arguments have been canvassed in this regard. 79. As already observed above, the Note relates to all the products enumerated in Chapter 29. Neither it is the contention of the appellants nor the Chapter 29 deals with the product which can only be consumed by the retail consumers. Neither the word 'consumer' is defined under the Act nor in the Rules to mean as the retail consumers unless specified otherwise. The word has been used as "consumer" simplicitor. Merely because the fiction refers to the treatment to render the product marketable and the first part of the Note relates to the activities which may at first glance appear to be referring to those which could be manufactured for the retail consumers, it cannot be said that the term relates to the retail consumers only. Plain reading of the Note would make it absolutely clear. Repacking in smaller packs need not necessarily be for retail consumer. It may be for hotel industry, airlines industry, etc. also. It may be for the benefit of the companies' engaged in rendering catering services. Same is the case of labelling or relabelling. Same principle would apply in case of any other treatment to the goods and it wo....
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....ly packed after their manufacture into the said combination of packing and it was not as if they were first packed into separate packing and thereafter, drawn from such packing and put into subsequent packing which was under consideration. Having so observed, it was held that the intention of the law maker was to ensure that the value addition which is sometimes substantiated which results as a consequence of packing the product into retail pack should be subject to duty. Each of the processes referred to in the Note, conversion of powder into tablets labeling or relabelling of container intended for consumer, repacking from bulk pack to retail packs obviously results in or facilitates sale of the product to the retail consumer. The adoption of any other treatment refers to in each of these processes referred in the Note would be such treatment that would render the product marketable to a consumer. The decision was not on the point as to whether the marketability aspect was necessarily related to retail consumer or not. The observation that the repacking from bulk pack to retail packs facilities sale of a product to retail consumer cannot be understood to mean that the term 'consu....
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.... to adoption of such processes. In other words, the observation related to the process by which the particular attributes of marketability was attributed to the product and not about total absence of any sort of marketability to the product. 83. In Conybio Healthcare (India) Pvt. Ltd. the Tribunal was considering Chapter Note 4 of Chapters 61 and 62. The Note provided that "in relation to a product of this chapter, affixing brand name on the product labelling or relabelling of its containers and repacking from bulk packs to retail packs or the adoption of any other treatment to render the product marketable to the consumer, shall amount to manufacture". It was held that the language used in the chapter note clearly indicates repacking from bulk pack to retail packs would not by itself amount to manufacture. Besides, there must be labeling or relabelling or affixing of brand name also. Applying the ruling in the matter of C.C.E., Mumbai v. Johnson & Johnson Ltd. reported in 2005 (188) E.L.T. 467, it was held that Chapter Note 5 of Chapter 30 which was the subject matter of Johson & Johnson's case was in pari materia to the said Note 4 and therefore applying the ruling of the....
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.... the consumer shall amount to manufacture", it was held that not only labeling or relabelling that is necessary but it should be repacking from bulk packs to retail packs. It was essentially because of the word "and" in between the words 'containers' and "repacking" in the Note. That does not mean that retail packs are necessarily meant only for the retail consumers. They can be also for consumers like hotel industries, companies engaged in rendering catering services, airlines etc. who may purchase the product packed in retail packs, but in bulk. 86. In Phil Corporation Ltd. case, the assessees were manufacturing processed cashew nuts, peanuts, almonds etc. manufactured by dry roasting, oil roasting, salting, seasoning and were packing the same in different containers and they were cleared under their brand name. The assessees did not register with the Excise authorities and cleared the goods without payment of excise duty. Consequently, show cause notice came to be issued which was sought to be defended by the assessee contending that the products were classifiable under Chapter Heading 0801.00 and were chargeable to nil rate of duty and therefore, there was no requiremen....
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.... v. Modern Co-operative Group Housing Society Ltd. reported in 2010 (262) E.L.T. 6 (S.C.), it was held that "It is the exclusive prerogative of the legislature to create a legal fiction meaning thereby to enact a deeming provision for the purpose of assuming the existence of a fact which does not really exist. Even if the legal fiction is created by the legislature, the Court has to ascertain for what purpose the fiction is created, and it must be limited to the purpose indicated by the context and cannot be given larger effect. More so, what can be deemed to exist under legal fiction are merely facts and legal consequences which do not flow from the law as it stands. It is settled legal proposition that in the absence of any statutory provision, the provision cannot be construed as to provide for a fiction in such an eventuality. More so, creating a fiction by judicial interpretation may amount to legislation, a field exclusively within the domain of the legislature". Reference was made to the earlier decision of the Apex Court in the matter of Ajab Singh v. Sirhind Coop. Marketing-cum-Processing Service Society Ltd. and others reported in (1999) 6 SCC 82. 89. In C.C.E., B....
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....ngabad reported in 2005 (190) E.L.T. 301, A.P. State Electricity Board v. C.C.E., Hyderabad reported in 1994 (70) E.L.T. 3 (S.C.), Oriental Construction Co. v. C.C.E., Pune-II reported in 2006 (199) E.L.T. 503, Union of India v. Sonic Electrochem (P) Ltd. reported in 2002 (145) E.L.T. 274 (S.C.), Gilooram Gaushanker v. C.C.E., Jamshedpur reported in 2001 (136) E.L.T. 434 and Indofil Chemicals Ltd. v. Union of India reported in 1994 (73) E.L.T. 9, it is settled law that in order to consider the product to be marketable, the same should not a transient product but it should be a product commercially identifiable one. The fact that the product is not actually marketed is not relevant and even if there is only one customer to purchase or consume the product then such product can be considered as a marketable product. Undisputedly, as already seen above, the product in question is clearly commercially identifiable one. It is captively consumed by the appellants. Similar type of the product was also purchased by the appellants and consumed by the appellants for the same purpose for which the product in question is consumed. The product in question has shelf life. Considering all this asp....
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....29 of the Central Excise Tariff Act, 1985 means any consumer including an industrial consumer and the said word is not related exclusively to retail consumer. The expression "any other treatment" is not confined to treatment in the nature adopting the attributes of the marketability to a product having absolutely no marketability prior to such treatment. The said expression includes any treatment including the treatment adopted to acquire of those attributes of marketability which the product did not possess prior to such treatment even though the product might have possessed other attributes of marketability. It is immaterial whether the product which are to be treated for rendering them marketable were having any attribute of marketability or not prior to adoption of any such treatment. The expression 'retail pack' does not relate to retail consumer. It refers to the circumstances in which the retail pack is made available to a consumer who may procure such goods even in bulk. 95. The next point that is sought to be raised relates to bar of limitation. It is the contention on behalf of the appellants that the demand for the period from May 1997 to September 2001 is barred....