TaxTMI 
TaxTMI 
2002 (9) TMI 104
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....e Central Excise Act, 1944 (for short, 'the Excise Act') by the Superintendent, Central Excise Range II, Pithampur, raising demand of excise duty on plastic body of Electro Mosquito Repellant (for short, 'E.M.R.') [which falls within 'Domestic electrical appliances] classifiable under Sub-Heading 85.16 of the Central Excise Tariff Act, 1985 (for short, 'the Tariff Act') and on Fragrant Mat. The respondents in Civil Appeal Nos. 182 of 1995 and 108 of 1995 filed writ petitions, under Article 226 of the Constitution, before the High Court of Madhya Pradesh challenging the validity of the show cause notices. However, the respondent in Civil Appeal No. 1649 of 1996 filed reply before the concerned authorities. The Collector of Customs and Centra....
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....ts-assessees, submits that the plastic body is manufactured to cater to the requirements of the respondents' EMR. The plastic body is not a standardised item and is not known by any name in the market and as such the High Court has rightly found that it is not marketable. 5.It is a common ground that EMR is exempt under clause 5(d) of Notification No. 160/1986-CE, dated March 1, 1986. The case of the Revenue is that under clause 5(f) of the said Notification, the plastic body, a part of EMR, is liable to excise duty. 6.To appreciate the contentions of the learned counsel, it would be apt to read the Notification in question, insofar as it is relevant, here : "Electric motors, generators, appliances, etc., falling under specified he....
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....) marketability. Insofar as the first requirement is concerned, there is no dispute that plastic body is being manufactured by the respondents. The germane question is whether it has marketability. The plastic body is being manufactured to suit the requirements of the EMR of the respondents and is not available in the market for being bought and sold. It is not a standarised item or goods known and generally dealt with in the market. It is being manufactured by the respondents for its captive consumption. It is not a product known in the market with any commercial name. 8.We do not consider it necessary to discuss the cases on the question of marketability, as this Court has dealt with all relevant cases in A.P. State Electricity Board's....
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....lt to lay down a precise test to determine marketability of articles. Marketabillity of goods has certain attributes. The essence of marketability is neither in the form nor in the shape or condition in which the manufactured articles are to be found, it is the commercial identity of the articles known to the market for being bought and sold. The fact that the product in question is generally not being bought and sold or has no demand in the market would be irrelevant. The plastic body of EMR does not satisfy the aforementioned criteria. There are some competing manufacturers of EMR. Each is having a different plastic body to suit its design and requirement. If one goes to the market to purchase plastic body of EMR of the respondents either....
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....he respondents in the writ petitions filed before the High Court as follows : "On the same pattern the petitioner also planned to innovate conventional Agarbatti - a concept of JETAGE Agarbatti. In first place the petitioner has changed the body, i.e. instead of woodflour and charcol dough which forms the body of Agarbatti, the petitioner developed a Paper Mat. Secondly, the perfumes and spreading agents like D.E.P., Fragrances, Alchool etc. are put in the dough and sticks made. In petitioner's came (sick) the perfume and the same chemicals are put in paper Mats. Thirdly, Perfumes and Spreading Chemicals get the heat through turning of woodflour and charcol stick when stick is burnt with the Match stick. The perfumes and chemicals in tra....