Commissioner of Central Excise Vs. Gurdaspur Distillery - Court Judgment

Excerpt:
2. revenue filed this appeal against the order-in-appeal passed by the commissioner (appeals) whereby the commissioner (appeals) held that methane gas is a mixture of gases like methane, carbon dioxide, etc., is not marketable, as such, therefore, is not excisable.3. brief facts of the case are that respondents are engaged in the manufacture of denatured ethyl alcohol and during the manufacture of denatured ethyl alcohol a residue known as spent wash comes into existence and the same was reacted in a closed type digester and methane gas in question was produced which was used as a fuel in distillery. a show cause notice was issued to the appellant for classifying the methane gas produced by the respondents under heading 2711.29 of the central excise tariff. the adjudicating authority confirmed the demand. the respondents filed appeal and the same was allowed.4. the contention of the revenue is that the methane gas is specifically mentioned in tariff, therefore, it is excisable. we find that the commissioner of central excise in the impugned order gave a specific finding that the gas in question is not marketable. hon'ble supreme court in the case of bhor industries ltd. v. collector of central excise, reported in 1989 (40) e.l.t. 280 (s.c.) held that marketability is an essential ingredient in order to become excisable goods under the central excise tariff. an article not liable to excise merely because of its specification in the tariff schedule unless it is "goods" known to the market.5. in the present case the commissioner (appeals) gave a specific finding that the goods in question are not marketable, as such and the revenue has not produced any evidence in respect of the marketability of the goods in question. therefore, we find no merit in the present appeal and the same is rejected.

Judgment:
2. Revenue filed this appeal against the order-in-appeal passed by the Commissioner (Appeals) whereby the Commissioner (Appeals) held that Methane Gas is a mixture of gases like Methane, Carbon Dioxide, etc., is not marketable, as such, therefore, is not excisable.

3. Brief facts of the case are that respondents are engaged in the manufacture of Denatured Ethyl Alcohol and during the manufacture of Denatured Ethyl Alcohol a residue known as spent wash comes into existence and the same was reacted in a closed type digester and Methane gas in question was produced which was used as a fuel in distillery. A show cause notice was issued to the appellant for classifying the Methane gas produced by the respondents under Heading 2711.29 of the Central Excise Tariff. The adjudicating authority confirmed the demand. The respondents filed appeal and the same was allowed.

4. The contention of the Revenue is that the Methane gas is specifically mentioned in tariff, therefore, it is excisable. We find that the Commissioner of Central Excise in the impugned order gave a specific finding that the gas in question is not marketable. Hon'ble Supreme Court in the case of Bhor Industries Ltd. v. Collector of Central Excise, reported in 1989 (40) E.L.T. 280 (S.C.) held that marketability is an essential ingredient in order to become excisable goods under the Central Excise Tariff. An article not liable to excise merely because of its specification in the Tariff Schedule unless it is "goods" known to the market.

5. In the present case the Commissioner (Appeals) gave a specific finding that the goods in question are not marketable, as such and the Revenue has not produced any evidence in respect of the marketability of the goods in question. Therefore, we find no merit in the present appeal and the same is rejected.