TaxTMI 
TaxTMI 
2023 (8) TMI 899
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....hgal, Adv. And Mr. E. C. Agrawala, AOR ORDER The submission on behalf of the appellant is essentially to the effect that question of classification was not properly gone into by the Customs, Excise & Service Tax Appellate Tribunal ("the Tribunal", for short) because of the confusion with reference to the earlier orders passed in the matter by the High Court including the orders dated 24.06.2009 and 12.11.2009. Therefore, according to the learned counsel for the appellant, the matter deserves to be remanded to the Tribunal to examine the issue of classification of the goods in question. 2. Learned counsel would submit that in terms of the order dated 12.11.2009, whereby the High Court made it clear that rather than setting aside the....
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....ous evidences have been led by the appellant to show that the chemical preparations which are marketed are used for still photography whereas the preparations made by them are used in processing of cinematographic films and such goods are customer specific and are made in situ and captively consumed and never marketed at all. This contention of the appellant has not been effectively rebutted by the Revenue. 7.2 As regards the so-called confusion in the impugned order of the adjudicating authority with regard to order dated 24/06/2009 of the Hon'ble High Court of Bombay, we notice that there is no room for confusion at all. Para 1 of the order dated 24/06/2009 of the Hon'ble High Court reads as under: "After hearing the....
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....micals are not marketed. The department has not tested any of the samples to ascertain the shelf life/other parameters relevant for examining the issue of marketability of the products. In other words, the experts opinion adduced by the appellant from M/s. Kodak India Ltd. has not been rebutted at all. In Bhor Industries Ltd. case [1989 (40) ELT 280 (SC)] the Hon'ble Apex Court held that "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 market. Marketability is, therefore, an essential ingredient in order to be dutiable under the Schedule to the Central Excise Act". The Hon'ble Apex Court further held that the burden to prove "goods" is o....
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....be mixed with water as per specifications for different baths and after dilution, the chemicals have a very short shelf life and are not marketable". (emphasis supplied) 6. In view of the above, and particularly in absence of the requisite evidence, the Tribunal ruled in favour of the respondent while observing as under:- "7.5 In view of the above and in the absence of any evidence to the contrary, the appellants contention that the various chemical preparations produced by them in situ and captively consumed are not marketable goods falling under CETH 3707 of the Central Excise Tariff have to be upheld. Accordingly, the demands confirmed in the impugned orders under the aforesaid heading are set aside. As regards the duty de....