2005 (1) TMI 111

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....urchasing and importing into India a product, which according to the Department, is an identical product to the intermediate product manufactured by Camlin Limited. If the product which was so purchased and imported by Luxor Pen Co. is an identical product then the Department would have succeeded in showing marketability of this product. Therefore, the main thrust of the argument, on behalf of Camlin Ltd., has been that the product imported by Luxor is not the same product but a completely different product. 3.At this stage it, therefore, becomes necessary to see what is the product of Camlin Ltd. and what was the product imported by Luxor. It is an admitted position that the intermediate product is manufactured by Camlin Ltd. by thoroug....

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....nthetic resin but a compound which was identical to that being manufactured by Camlin Ltd. As one of the major manufacturers of crayon in this country was importing this material, the Department had clearly established the marketability of this material. It is settled law that for a good to be marketable it is not necessary that there must be actual instances of sale by the assessee. Marketability is essentially a question of fact to be decided on facts of each case and once it is shown that a product has actually been bought, marketability gets established. 6.The second question is regarding classification. The Department claims that the product has to be classified under Chapter Heading 32.04 which reads as follows : Heading No. ....

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.... On the other hand on behalf of the Camlin Ltd. it is contended that the correct classification should be under tariff Heading 96.09 which reads as follows :- "96.09   Pencils (Other Than Pencils Of Heading No. 96.08), Crayons, Pencil Leads, Pastels, Drawing Charcoals, Writing Or Drawing Chalks And Tailors' Chalks. 9609.10 - Pencils and crayons, with leads encased in a rigid sheath 9609.20 - Pencil leads, black or coloured 9609.90 - Other" 9. It is submitted that the test analysis shows that the intermediate compound is essentially the same and that it has all the characteristics of a crayon. Reliance is placed on Rules for the Interpretation of the Schedule to the Central Excise Tariff wherein Ru....