TaxTMI 
TaxTMI 
2014 (8) TMI 499
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....ehyde Resin, Urea Formaldehyde Resin, Melamine Formaldehyde Resin and Cordanol Formaldehyde Resin which were being used 100% for captive use in the manufacture of decorative plywood, particle board etc. According to Department, these resins were classifiable under heading 3909 of the tariff and hence are not covered by hill area notification no.50/2003-CE. Since these resins were being used captively for manufacture of the finished products - decorative plywood etc., which were cleared at nil rate of duty by availing full duty exemption under notification no.50/2003-CE, the department was of the view that these resins would not be eligible for captive consumption exemption under notification no.67/95-CE and since the same are not covered by the hill area exemption under notification no. 50/2003-CE., the same would be chargeable to duty. It is on this basis that after issue of show cause notices, the Commissioner by four separate orders confirmed the following duty demands against the appellants along with interest and imposed penalties on them:- Sl.No Parties Name O-in-O No.& date Period of demand Duty demand confirmed Penalties imposed 1. M/s. Greenply Industries 42/C....
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.... some chemical ingredients, the same can be sold, that the Apex Court in the case of Moti Laminates Pvt. Ltd. reported in 1995 (76)ELT-241(SC) had examined the question of excitability of Phenol Formaldehyde Resin manufactured by the manufacturers of laminated sheets has and held that though this item is covered by Section 15 A(1) of the then central excise Tariff, the same is not excisable for the reason that the same is not marketable, as its shelf life is only 2 to 3 days without addition of stabilizer or retarder and could survive upto 15 days under regulated or controlled temperature conditions, that the ratio of this judgement of the Apex Court is squarely applicable to the facts of this case, that the Commissioner has relied upon the internet data of one M/s. Akolite Synthetic Resins, Mangalore to hold that since the said manufacturer was manufacturing the same types of resins which were being advertised for sale, the resins manufactured by the Appellants are marketable, that the Commissioner has not put forth any evidence to show that the process of manufacture of the resins, the inputs used and the use of the resin manufactured by M/s. Akolite Synthetic Resins, Mangalore w....
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....estion, are not in the negative list, is not correct, that since the goods, in question, are classifiable under chapter 39, the same are not eligible for exemption under notification no.50/2003-CE and since the final products being manufactured are exempt from duty under notification no.50/2003-CE, the resins being manufactured for captive use would not be eligible for exemption under notification no.67/95-CE, that the resins, in question, are marketable and hence are excisable, that the evidence of marketability is the internet website of M/s. Akolite Synthetic Resins, Mangalore regarding sale of resins, in question, which has been discussed in the impugned order in original passed by the Commissioner, that in terms of the Chemical Examiner, CRCL's report dt.20.09.2010, the resins, in question, have shelf life of 13 days to 32 days and not a few days and, hence, the same have to be treated as marketable, that for proving the marketability of the goods, it is not necessary to show the evidence of the actual sale of the goods and only the existence of market for the goods has to be established, that the existence of market of the goods, in question, is evident from a number of w....
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....hese resins in the form in which the same are cleared for captive consumption, are marketable and hence, excisable. While the appellant's plea is that these resins have shelf life of only 2 to 3 days and can be kept useable under controlled conditions of temperature upto 15 days, and hence are not marketable, the department based on the opinion of the Chemical Examiner pleads that their normal shelf life is upto 3 to 4 weeks and hence these goods are marketable. We also find that the Apex Court in the case of Moti Laminates Pvt. Ltd. (supra) , taking note of the fact that such resins being manufactured for captive use have shelf life of 2 to 3 days without addition of stabilizes or retarders and upto to 15 days under controlled conditions of temperature, has held that the same as not marketable and hence, not excisable. The Department contention, however, is that this ruling of the Apex Court cannot be treated as valid in all the cases. Though the Commissioner has relied upon the information available on internet website, the same was not made available to the appellants and their response in respect of the same has not considered. 6.1 In our prima facie view, the question of ....