2005 (6) TMI 72

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....classifiable as Auyurvedic medicaments falling under Chapter 30 of the Central Excise Tariff Act, 1985. The appellants have two other factories situated at Dehradun and New Delhi. In these factories, the raw materials which are various parts of the herbs like barks, flowers, fruits roots leaves etc., are converted into granules, extracts and oils which are in a semi-finished stage. The factories at Dehradun and Delhi are also issued with drug licences by the concerned authorities. These drugs as per the licence would be manufactured up to the extract or granule stage only by the factories and would be further formulated into tablets syrups, ointments and creams at the manufacturing unit of the appellant located at Bangalore. The Central Exc....

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..... (a)        Hindustan Polymers Co. Ltd. v. CCE - 1999 (106) E.L.T. 12 (S.C.) (b)        Warner Hindustan Ltd. v. CCE - 1999 (113) E.L.T. 24 (S.C.) (c)        Sharp Batteries & Allied Industries P. Ltd. v. CCE - 2002 (145) E.L.T. 611 (d)        CCE, Meerut-II v. Beltek Canadian Water Ltd. - 2001 (130) E.L.T. 657 (e)        Comteck Laboratories v. CCE, Mumbai - 2003 (156) E.L.T. 966 (f)         Chimique Industries v. CCE, Bangalore [Final Order Nos. 129-130/2005, dated 19-1-2005 of CESTAT Bangalore Bench]. (ii....

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....rm in which it is to be taxed. The Commissioner has relied on the report of the Assistant Commissioner's affidavit which indicates that the products of the other companies of similar nature are marketable. The product of Vijayawada is standardised. In the case of appellants, the products are not standardised and the products cleared from Delhi are not marketable as such. The burden to prove marketability is on the department. The department has not produced any evidence that the item on which duty is sought to be levied is marketed in the condition in which it is proposed to be taxed. The following case laws were relied on. (a)        Cadila Laboratories Pvt. Ltd. v. CCE - 2003 (152) E.L.T. 262 (S.C.) ....

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....circumstances, they cannot be held to be marketable. Moreover, even if duty is held to be payable on these products cleared at Delhi factory, CENVAT credit would be available at Bangalore Factory. In view of this there cannot be any intention to evade central excise duty. From the records, it is seen that there are no grounds for holding that the appellants have suppressed facts in order to evade payment of duty. In these circumstances, the OIO cannot be sustained. All the case laws relied on by the appellants are very relevant. The Board in it's Circular dated 16-9-97 has clarified that the vegetable extracts which emerge at intermediary stage in the manufacture of Ayurvedic, Unani or Siddha medicines are not marketable unless subjected to....