2005 (4) TMI 72

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....ring this period of time, Butachlor was exempted from payment of excise duty. However, a demand was raised by the Assistant Collector (Excise) on the appellant in respect of the intermediate products because they were "coming into existence". The demand, however, was set aside by the Commissioner (Appeals) who was of the view that the Assistant Collector had not come to any finding whether the products in question could be treated as marketable. It was held that there was no factual basis whatsoever on the basis of which the Assistant Collector could have reached the conclusion that the products were marketable and unless the goods were marketable, they were not subject to excise duty. It was, therefore, held that reading Section 2(F) with ....

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....n production figures of the two intermediate products on the basis of actuals and not on theoretical basis, this showed that the product was marketable. 4.The appellant is right in its contention that the decision of the CEGAT is based on conjectures, hypotheses and is illogical. After the decision of this Court in Bhor Industries Ltd. Bombay v. Collector of Central Excise, Bombay 1989 (1) SCC 602, unless the product is capable of being marketed and is known to those who are in the market as having an identity as a distinct identifiable commodity that the article is subject to excise duty. Simply because certain articles fall within the schedule does not make them marketable. Actual sale in the market is not necessary but the articles mu....

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....of EMR of the respondents, is not "goods" so as to be liable to duty as parts of EMR under para 5(f) of the said exemption notification." 6.This passage would clearly show the level at which the marketability has to be established. 7.The onus was on the Revenue. The only piece of evidence which has been produced by the Revenue was a test report which merely stated that the sample showed that the items were organic chemicals . It does not in any way establish marketability. Nor can marketability be established on the basis of mere stability. Something more would have to be shown to establish that DECA AND CMBE were known in the market as commercial products. 8.The Tribunal has ignored the evidence given by the employees of the appel....