Commissioner of C. Ex. Vs. Tony Electronics Ltd.

1. revenue has filed the above appeal against the order in appeal passed by the collector (appeals) who has accepted the assessees' contention that waste and scrap arising in the course of manufacture of audio video magnetic tape is not excisable since it is not marketable.according to the ld. dr, a similar product is being manufactured by j.k. magnetic tape who are clearing such waste and scrap on payment of duty under c.e.t. 3915.20/3915.90. on the other hand, the ld. counsel contended that the assessees are not clearing the waste and scrap in question but throughout the proceedings, their stand is that waste and scrap of audio video magnetic tape is not marketable and this stand has not been rebutted with reference to any satisfactory evidence by the department.2. we have considered the submissions made by sides. we find that, although, the assistant commissioner has referred to the manufacture of magnetic tape and clearance of waste and scrap of such tapes by m/s.j.k. magnetic tapes on payment of duty under c.e.t. sub-heading 3915.20 and 3915.90, in the appeal memorandum before the tribunal the ground taken is that marketability test is not relevant and that mere entry of an item in the tariff is sufficient to hold that the goods are liable to duty. the department has not controverted the claim of the assessees which has been accepted by the lower appellate authority that the item in question is not marketable. further, in the show cause notice no where reference is made to clearance of identical items v.m.t./a.m.t.by any other manufacturers. in the present case there is no material to establish that waste and scrap of a.m.t./v.m.t. is marketable; we hence see no reason to interfere with the findings of the lower appellate authority who has correctly held that marketability criterion is relevant, and therefore we uphold the impugned order and reject the appeal.