TaxTMI 
TaxTMI 
2015 (6) TMI 374
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.... Duty demand of Rs. 1,79,09,975/- under Section 11A(1) of Central Excise 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/- ....
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.... cover, mainly business and other articles of stationary papers and paper board which are covered under 482010. On the issue of marketability, the adjudicating authority 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 ac....
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...., Patna Vs. Tata Iron & Steel Co. Ltd. [2004 (165) ELT 386 (SC)] (d) F.G. P. Ltd. Vs. Union of India [2004 (168) ELT 289 (SC)] (e) Bhor Industries Ltd. Vs. Collector of Central 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 obvio....
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....nd found that in those judgments product are more or less identical and same were held classifiable under chapter 49. Relevant paras of judgments are reproduced below:- GOPSONS PAPERS LTD. Versus COMMISISONER 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 ....
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....01.90 as products of the printing industry. In the case of Metagraphs Pvt. Ltd., the Hon'ble Apex Court held that if printing brings into existence a product, the resultant product would be a "product of printing 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 t....
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....claim exemption on the labels in question under the above-mentioned Notification. There will be no order as to costs. DATA PROCESSING FORMS PVT. LTD. Versus COMMR. OF C.EXCISE, AHMEDABAD [2014 (311) E.L.T. 161 (Tri. - Ahmd.)] 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 ....
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....ding 49.11. From above judgments it is crystal clear that product in question being in the form of various printed forms with some blanks is product of printing industries and the same is classifiable under chapter 49 and excluded from 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 bo....
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.... dross and skimming arising as refuse during galvanisation process are not excisable goods. The Tribunal, in our opinion, has rightly relied upon the decision of this Court in Indian Aluminium Co. Ltd. (supra) and in view of the above decision of the 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 ....
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....re of goods produced or manufactured within the country. This Court again In Re The Bill to Amend Section 20 of the Sea Customs Act, 1878, and Section 3 of the Central Excises and Salt Act, 1944 [1964 (3) SCR 787] at page 822 of the report referring to the aforesaid 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 s....
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....riff Item No. 15A were not exigible to duty. The finding of the Tribunal that once the product manufactured by the appellants answered the chemical description of the product under Tariff Item 15A it was assessable to duty whether it was marketable or not was thus not well 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 an....