TaxTMI 
TaxTMI 
2007 (5) TMI 54
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....ged in the manufacture of aerated water and availing facility of Modvat credit of duty payable on these excisable goods. The authorities below found that the appellant did not give any proof to show that the goods in question had become "non-marketable". It was held that the parties had simply submitted that the goods were rejected as being unfit for consumption on account of being contaminated and had submitted in its report to show that they were in fact contaminated and hence not marketable. The authorities below also relied upon the decision of a Division Bench of the Tribunal given in the appellant's own case Amrit Bottlers Pvt. Ltd. v. Commissioner of Central Excise, Allahabad, reported in 2004 (177) E.L.T. 277 (Tri.-Del.), in which p....
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....did not send any intimation to the department regarding their disposal/destruction on account of non-marketability. If those goods were defective, non-marketable, the appellants could seek remission/abatement of duty under Rule 49 of the Rules but this course also they did not adopt. Therefore, their simple plea that the disposed of crates/bottles of aerated water on account of non-marketability or having used in the laboratory test, carries no legal value for want of corroboration from any evidence". 3. The learned counsel for the appellants relied upon the decision of a Division Bench of this Tribunal in Hindustan Coca Cola Beverages Pvt. Ltd. v. Commissioner of Central Excise, Patna , reported in 2006 (203) E.L.T. 69 (Tri.-Kolkata), whi....
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....the appeal with consequential relief to the appellants". 4. The learned counsel for the appellant also relied upon a decision of the learned Single Member in Excise Appeal No. 5536 of 2004 decided on 10-11- 2006 in a case where a manufacturer of aerated water had taken a similar plea of a portion of aerated water being drained out due to rejection and of over-filling and badly crowned bottle, following the ratio of the decision of the Tribunal in Hindustan Coca Cola Beverages Pvt. Ltd. (supra) held that the matter was squarely covered, and set aside the impugned order. 5. It appears that the decision in Amrit Bottlers Pvt. Ltd. (supra) was not brought to the notice of the Division Bench in Hindustan Coca Cola Beverages Pvt. Ltd. (supra) o....