2008 (3) TMI 330

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....e (for short 'BMS') is marketable and therefore liable to excise duty. 2. The appellant-company is engaged in the manufacture of patent and proprietary medicines and organic chemicals (bulk drugs and intermediate) falling under Chapters 29 & 30 of the Central Excise Tariff Act, 1985 (for short 'Tariff Act') in their factory at Virgonagar, Old Madras Road, Bangalore. Appellant filed classification lists with effect from 5-6-1986 and 1-3-1987 in which they declared that one of the items, viz., BMS prepared in their factory was a non-excisable item. 3. The Revenue issued two separate show cause notices both dated 25th August 1987 wherein it was proposed that BMS was an item liable to duty under sub-heading 2913.00 of the Tariff Act prior to ....

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....ious decisions of this Court on the issue of marketability held that the enquiries made by the Revenue to ascertain the marketability of BMS had not yielded any tangible results and that the Assistant Drug Controller of India at Custom House, Bombay, had also stated that there had been no import or export of BMS at the port of Bombay. The Assistant Collector also referred to the evidence produced by the appellant by way of affidavits and letters from bulk drug dealers to hold that BMS manufactured was not marketed. It was also held that the Department had not been able to furnish any documents regarding the marketability of the goods in question. Following the decision of this Court in the case of Bhor Industries Ltd. v. C.C.E. - 1989 (40) ....

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....was marketed or marketable. In view of the difference of opinion, the matter was referred to a third member to resolve the issue. The third member agreed with the view taken by the Member (Technical). As a consequence of the majority view, the appeal filed by the appellant was dismissed. 10. On a question put to Mr. Radhakrishnan, learned senior counsel appearing for the Revenue, it was fairly stated by him that no evidence was adduced by the Revenue to show that the product was marketable or was capable of being marketed. He simply relied upon Chemical Weekly Drug Directory wherein BMS was shown as an intermediate product. This Court in a number of decisions such as, Union of India v. Delhi Cloth & Chemicals Mills Co. Ltd. - AIR 1963 S.C.....