ORDER
V. K. Agrawal, Member (T)
1. M/s. J.C.T. Ltd. has filed the present appeal against the Order-in-Appeal No. 448/2003 dated 29-7-2003 by which the Commissioner (Appeals) has confirmed the rejection of their claim for the refund of duty filed by them.
2. We heard Shri K.K. Anand, learned Advocate for the Appellants and Shri H.C. Verma, learned D.R. for the Revenue. The Appellants manufacture Polyster/Nylon filament Yarn/Chips. They also manufacture Nylon Filament of 210 denier which is exempt from payment of Central Excise duty. When the Central Excise Officers visited the factory premises of the Appellants in August, 2000 they found that nylon chips arise at the intermediate stage during the course of manufacture of nylon filament of 210 denier in respect of which Central Excise duty is payable by them as the benefit of Notification No. 67/95-CE dated 16-3-1995 will not be available being the nylon filament yarn of 210 denier exempt from payment of duty. The Appellants discharged the duty liability on the captive consumption of nylon chips less Modvat Credit also reversed by them in respect of caprolactum used in the manufacture of 210 denier variety of nylon filament yarn. Subsequently they filed a refund claim of the duty so paid by them which was rejected by the Asst. Commissioner under Order No. 270/AC/2001 dated 31-12-2001 which has been upheld by the Commissioner (Appeals) also. It has been contended by the Appellants that nylon chips which arise in the closed circuit plant during the course of manufacture of nylon filament yarn are not marketable as these are required to be packed under the cover of spray of nitrogen either in silo or LDPE liner bags; that the impugned nylon chips had no shelf life and they get oxidized as soon as they come into contact with air. On the other hand specific finding had been given by the Asst. Commissioner that the nylon chips are cleared by the Appellants on payment of duty which clearly goes to show that they are marketable. The Commissioner (Appeals) also has given his specific finding that nylon chips can either be used captively or taken out from main manufacturing line at the intermediate stage as per requirement and when these are despatched they need a cover of spray of nitrogen and by this they do not lose marketability merely because the captively consumed nylon chips are not sprayed. We fully agree with the findings of the learned Commissioner. It is not denied by the Appellants that nylon chips are being marketed by them themselves. Certainly when the product is being marketed it will be packed and whatever precautions are to be taken will be taken by the manufacturer before the same is being marketed. If the same product is captively consumed it does not require any packing nor any precaution is to be taken in respect of those products. It does not flow from this that merely because the products are not packed when these are captively consumed they loose their capability of being marketed. The test of marketability is that the product should be capable of being brought to the market for being bought and sold. Nylon chip manufactured by the Appellants are such a commodity which is capable of being brought to the market no doubt after being packed and sprayed, for the purpose of bought and sold. The Revenue has thus discharged onus cast on them successfully by showing that the nylon chips manufactured by the Appellants are capable of being marketed. In view of this there is no merit in the appeal which is rejected.