TaxTMI 
TaxTMI 
2015 (6) TMI 374
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....se Act, 1944 Penalty of Rs. 1,79,09,975/- under Section 25 of the Central Excise Rules, 2002. 2. E/666/12-MUM 45 to 47/,-I/2011 dated 24/11/2012 (1) F.No. V-Adj (48) CSCN/MI/15-62/10 dated 13/8/2010 (2) F.No. V-Adj (48) CSCN/MI/15-81/10-11 dated 33/3/2011 (3) F.No. V-Adj(48) CSCN/MI/15-06/11 dated 23/11/2011 Duty demand of Rs. 3,32,61,463/- under Section 11A(1) of Central Excise Act, 1944 Penalty of Rs. 3,32,61,463/- under Section 11AC of the Central Excise Act, 1944. 3. E/1693/10-MUM 16-19/M-I/2010 dated 17/6/2010 (1) F.No. V-Adj (48)CSCN/MI/15-29/08 dated 26/09/2008 (2) F.No. V-Adj (48) CSCN/MI/15-07/09 dated 4/3/2009 (3) F.No. V-Adj (48) CSCN/MI/15-20/09 dated 20/8/2009 (4) F.No. V-Adj (48) CSCN/MI/15-39/10 dated 12/3/2010 Duty demand of Rs. 2,17,56,480/- under Section 11A of the Central Excise Act, 1944. Penalty of Rs. 2,17,56,480/- under Section 11AC of the Central Excise Act, 1944 4. E/1222/11-MUM 1 & 2/SK/M-I/2013 dated 10/1/2013 F.NO. V-Adj(48) CSCN/M-I/15-17/2011 dated 28/5/2011 Duty demand of Rs. 1,16,97,025/- F. No. V-Adj (48) CSCN/M-I/15-18/12 dated 7/12/2012 Duty demand of Rs. 1,35,16,967/- ....
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....ity has held that product are commercial known goods in the market for being bought and sold. It was contended that it is necessary that goods should be marketed, even if product is consumed captively the status of marketability will not change. Being aggrieved by the impugned order appellant filed these appeals. 2. Shri. R.V. Desai, Ld. Sr. Counsel alongwith Shri. R.B. Pardeshi appeared and submits that first of all goods mentioned in the show cause notices and adjudication order are different from the actual goods manufactured and consumed captively by the Central Railway printing press. He submits complete folder of all the forms leaflet such as reservation form, application form for railway pass, hospital form leave application form and various other forms which are used for working the railway's day to day function. He submits that in show cause notice and adjudication order the tariff entry description 4820 was reproduced verbatim and accordingly contended that this product classified under 4820 whereas actual product are not those which described and mentioned in the tariff entry of 4820. He submits that as per the samples of the various forms it can be seen that these ....
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....ral Excise [1989 (40) ELT 280 (SC)] (f) A.P. State Electricity Board Vs. Collector of Central Excise, Hyderabad [1994 (70) ELT 3 (SC)] (g) Moti Laminates Pvt. Ltd. Vs. Collector of Central Excise, Ahmedabad [1995 (76) ELT 241 (S.C.)] (h) South Bihar Sugar Mills Ltd. & Anr. Vs. Union of India [1978 ELT (J 336)] (i) Union of India & Ors. Vs. Delhi Cloth & General Mills Co. lt. & Cors. [1977 ELT (J199)] (j) Medley Pharmaceuticals Ltd. Vs. Commr. of C.Ex. & Cus. Daman [2011 (263) ELT 641 (SC)] (k) Cipla Ltd. Vs. Commissioner of C.Ex. Bangalore [2008 (225) ELT 403 (SC)] He submits that in view of the above judgments, since the burden of proof regarding the marketability of the product has not been discharged by the Revenue the entire proceedings in this case is liable to be dropped only on this ground alone. He also submits that when all these printed products are printed with the name of Central Railway and printed information contained therein are meant for railways function it is very obvious that these material cannot be used by any other person, therefore it is not capable of being sold or purchased, on this fact also demand is not sustainable. 3. On the other hand Shri. Hi....
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....SONER OF CENTRAL EXCISE, NOIDA 2006 (202) E.L.T. 313 (Tri. - Del.) 10. The finding of the Commissioner is erroenous and is contrary to normal commercial practices. In the very nature of selling tickets, printed formats cannot have all the particulars. As already noticed in para 7 of this order, HSN Explanatory Notes under Chapter 49 specifically recognizes this and clarifies that certain printed articles may be intended for completion at the time of use and still would remain in the heading 49.11 provided "they are essentially printed matter". The note goes on to clarify that printed forms (e.g. magazine subscription forms), blank multi-coupon travel tickets, circular letters, identity documents and cards etc. requiring only the insertion of particulars (e.g. dates and names) are classified in this heading. Thus, existence of blank portions in printed forms do not take them out of "other printed products or articles". Many are the items that readily come to mind. Most printed application forms would leave the name and other particulars of the applicant blank. Similarly, ticket forms would not have names/numbers of the buyers. In the present case also, particulars of the buyers/num....
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....ng industry". In the case before us, it is not in dispute that the printing on the thermal sheets/rolls of paper brought into existence, receipts for the ATM, lottery tickets and rolls for bus tickets. Therefore, printing is not merely incidental to the use of the product as such printing imparts a substantial character and quality to the product. It is true that while actually using, certain particulars are required to be entered in these rolls by the ATM or the lottery machine or in the bus ticket vending machine. Nevertheless the product is specifically meant to be used as ATM receipts, lottery tickets and bus ticket. It is the printing done on the thermal paper which has imparted these characteristics and therefore, it has to be held that printing is not merely incidental to the use of the products. Applying the ratio of the decisions cited supra, it becomes evident that the impugned goods prior to enactment of Finance Bill, 2012 merit classification as "products of the printing industry". Further, it is seen that in the Finance Bill, 2012 a specific note 14 (supra) was inserted in Chapter 48 to bring within the scope of Chapter 48 certain products of the printing industry. The....
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....d.)] 29. In view of this, we are of the opinion that there was inadequate assistance to the Bench in case of Surya Offset and hence though the decision in regards of similar products, is per incurium as it has not considered the binding decisions of co-ordinate Bench. We have followed the ratio of various decisions as cited hereinabove while coming to the conclusion in this case. We also find that the judgment of Hon'ble Supreme Court in the case of Metagraphs Pvt. Ltd. (supra), a ratio has been laid down which is guiding factor for coming to a conclusion whether the product will fall under the category of "product of Printing Industry" or otherwise. Their Lordship in Para 10 has laid down the ratio which is with respect reproduced. "10. The label announces to the customer that the product is or is not of his choice and his purchase of the commodity would be decided by the printed matter on the label. The printing of the label is not incidental to its use but primary in the sense that it communicates to the customer about the product and this serves a definite purpose. This Court in Rollatainers case held that "what is exempt under the notification is the 'product' of....
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.... chapter 48 therefore in our considered view the product in question are classifiable under chapter 4901 and hence not liable for duty. On the issue of marketability, in view of the fact that all the printed products are contained details related to and for the purpose of various day to day function of Central railway, these products are indeed used in-house by Central Railway. Excisebility of the product comes into play only when paper is printed. When bought out paper are printed and comes into existence an excisable product then test of marketability has to be under gone. After printing of the plain paper with the details containing therein all these forms leaflet, folders etc. can be used by Central railway alone and it can neither be used nor shall be useful for any other person other than Central Railway. This undisputed facts is more than sufficient reason to hold that the product is not marketable because same is neither capable of being bought and sold nor can be factually bought and sold. As regard the marketability, the contention of the Revenue is that the product is commercially known in the market does not hold water for the reason that if the product in the present c....
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....he Tribunal following this Courts opinion in Indian Aluminium Company Limited (supra), we disagree with the appellant's that zinc dross, flux skimming and zinc scallings are goods and hence excisable. F.G.P. LTD. Versus UNION OF INDIA [2004 (168) E.L.T. 289 (S.C.)] 14. It is thus clear that the marketability of the goods is an essential ingredient of excisable goods for being subjected to the excise duty. 15. That the goods are marketable, has to be proved by the excise authorities. In this case the appellants filed affidavits of certain concerns showing that they are not interested in purchasing 'glass lumps'. No evidence whatsoever has been brought on record by the excise authorities to show that the said goods are marketable in the sense stated above. Based on the evidence of affidavits filed by the appellant it is sought to be argued that the deponents may not be interested in purchasing 'glass lumps' but it does not disprove marketability of the goods. We are unable to accept this contention. The burden of showing that the goods are marketable is on the Revenue. In the absence of any proof brought on record by the Revenue that 'glass lumps' are m....
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....id observations of the Judicial Committee reiterated that taxable event in the case of duties of excises is the manufacture of goods and the duty is not directly on the goods but on the manufacture thereof. Therefore, the essential ingredient is that there should be manufacture of goods. The goods being articles which are known to those who are dealing in the market having their identity as such. Section 3 of the Act enjoins that there shall be levied and collected in such manner as may be prescribed duties of excise on all excisable goods other than salt which are produced or 'manufactured' in India. "Excisable goods" under Section 2(d) of the Act means goods specified in the Schedule to the Central Excise Tariff Act, 1985 as being subject to a duty of excise and includes salt. Therefore, it is necessary, in a case like this, to find out whether there are goods, that is to say, articles as known in the market as separate distinct identifiable commodities and whether the tariff duty levied would be as specified in the Schedule. Simply because a certain article falls within the Schedule it would not be dutiable under excise law if the said article is not "goods" known to the....
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....ell founded. CIPLA LTD. Versus COMMISSIONER OF C.EX, BANGALORE [2008 (225) E.LT. 403 (S.C.)] 11. Since marketability is an essential ingredient to hold that a product is dutiable or exigible, it was for the Revenue to prove that the product was marketable or was capable of being marketed. Manufacturing activity, by itself, does not prove the marketability. The product produced must be a distinct commodity known in the common parlance to the commercial community for the purpose of buying and selling. Since there is no evidence of either buying or selling in the present case, it cannot be held that the product in question was marketable or was capable of being marketed. Mere transfer of BMS by the appellant from its factory at Bangalore to its own unit at Patalganga for manufacture of final product does not show that the product was either marketed or was marketable. 12. Since the Revenue has failed to lead any evidence to show that the product in question was marketable or was capable of being marketed and that the product in question was a distinct product for being sold in the market, it has to be held that the product in question was not marketable. Accordingly, the appeal is ....