Commissioner of Central Excise Vs. Tata Mills

Commissioner of Central Excise vs Tata Mills

Type Court Judgment Court Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai Decided May 14, 2004

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Citation: sooperkanoon.com/35251
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Judge: S T S.S., T Anjaneyulu
Decided On: May 14, 2004
Subject: Excise

Case Summary

AI-generated summary - not the official court judgment text.

Excise

Key legal issue: Excise

Parties & Advocates

Appellant / Petitioner

Commissioner of Central Excise

Respondent

Tata Mills

Excerpt

.....mixture which is captively used for dipping the fabrics being manufactured by the assessee. the percentage of mix is not standard, the mix is claimed to be used immediately as it has a short shelf life, it is claimed to be not marketable and in fact not marketed. c. the lower authorities, rejected the applicability of moti laminates pvt. ltd. case of supreme court, boards instructions on such binders not being excisable, on the finding as :- "....the ratio of the judgment of the supreme court in the case of moti laminates pvt. ltd. or the boards circular dated 30.6.99 exempting intermediate products like binder/resins/glues on developed from agricultural residues would not apply to the present case." after finding that no material on short shelf life produced; the entity was held liable to duty and not eligible to benefit of notification no. 217/86. d. the board's order circular no. 464/30199 dated 30.6.99, in the context of binders/glues/resins etc. captively used, in the manufactures of particle boards being made from agricultural waste/residues, after relying on moti laminates(p) ltd. (1995 (76) elt 241 sc) stipulates:- "4......, it appears that there intermediate products viz. binder/resin/glues which on captively consumed are not chargeable to excise duty, owing to their short shelf life provided that they are not marketed or sold commercially as such". no evidence of marketability or sale has been brought out in this case in the orders of the lower authority, who appear to have been led only on the ground of 'binder' being mentioned by name in the tariff under hand 35.06. the law on this aspect is well settled. excise levy is not an imposition on items specifically mentioned in the tariff; the levy is on manufacture of such item as mentioned. that also when they are capable of being marketed and saleability is established. the failure of the appellants to file an affidavit to prove "not marketed" or "sold commercially" as found by the ld. commissioner of.....

Full Judgment

1. Heard learned Jt. CDR, appellant not represented: Considered the material on record and it is found:- a. The issue is levy of Central Excise Duty for the period March 1992 to September 1994 on binder bath/paste prepared in the assessees premises and consumed captively since the year 1965.

which are duty paid ingredients purchased and diluted batch wise by stirring not a wooden stick, manually, to get a homogenous mixture which is captively used for dipping the fabrics being manufactured by the assessee. The percentage of mix is not standard, the mix is claimed to be used immediately as it has a short shelf life, it is claimed to be not marketable and in fact not marketed.

c. The lower authorities, rejected the applicability of Moti Laminates Pvt. Ltd. case of Supreme Court, Boards instructions on such Binders not being excisable, on the finding as :- "....The ratio of the judgment of the Supreme Court in the case of Moti Laminates Pvt. Ltd. or the Boards Circular dated 30.6.99 exempting intermediate products like Binder/Resins/Glues on developed from agricultural residues would not apply to the present case." After finding that no material on short shelf life produced; the entity was held liable to duty and not eligible to benefit of notification No. 217/86.

d. The Board's order Circular No. 464/30199 dated 30.6.99, in the context of Binders/Glues/Resins etc. captively used, in the manufactures of particle boards being made from agricultural waste/residues, after relying on Moti Laminates(p) Ltd. (1995 (76) ELT 241 SC) stipulates:- "4......, it appears that there intermediate products viz.

binder/resin/glues which on captively consumed are not chargeable to excise duty, owing to their short shelf life provided that they are not marketed or sold commercially as such".

No evidence of marketability or sale has been brought out in this case in the orders of the lower authority, who appear to have been led only on the ground of 'Binder' being mentioned by name in the Tariff under hand 35.06. The law on this aspect is well settled.

Excise levy is not an imposition on items specifically mentioned in the Tariff; the levy is on manufacture of such item as mentioned.

That also when they are capable of being marketed and saleability is established. The failure of the appellants to file an affidavit to prove "not marketed" or "sold commercially" as found by the Ld.

Commissioner of Central Excise (Appeals) in the order impugned can not be a ground to hold eligibility. The Apex Court in the recent decision in the case of Tata Iron & Steel Co. Ltd. (2004 (164) ELT 372 SC) have held:- "8... ...Marketability is a question of fact and does not follow from the mere mentions of the item in 151...," and in the case of Commissioner of Central Excise/Tata Iron & Steel Co. Ltd.(2004 (165) ELT 386 SC the full bench of the Supreme Court has stipulated :- "21. The Court, in conclusion, held that the particular goods on which excise duty is sought to be levied have gone through the process of manufactures in India is India is on the Revenue.." This onus has not been discharged when the Show Cause Notice and the orders are perused. The exigibility is therefore not upheld.2. In view of the findings, the orders can not be sustained and are to be set aside consequently the appeal is allowed

Same Court & Year Customs Excise and Service Tax Appellate Tribunal CESTAT Mumb... Same Parties Commissioner of Central Excise vs Tata Mills Same Subject Excise Same Judge S T S.S., T Anjaneyulu