ORDER
Gowri Shankar, Member (T)
1. The appeal is against the order of the Additional Collector demanding duty on two grounds and imposing a penalty on the appellant.
2. We have heard both sides.
3. The first ground for which the Additional Collector demanded duty was that some items of machinery which the appellant manufactures could not be considered to be waste, within the meaning of Rule 57D because it did not arise in the course of manufacture. The appellants contention had been, and continues to be that the machines in question did not come up to its required standards and therefore could not be marketed. They are therefore in the nature of waste.
4. The Departmental representative reiterates the reasoning of the Additional Collector that for something to be considered waste within the meaning of Rule 57D it has to arise in the course of manufacture of the finished product. The finished product itself cannot be waste.
5. We are unable to accept this latter argument. Rule 57D refers to the “final product” which is defined in Rule 57A as finished excisable goods. Finished excisable goods have necessarily to be marketable. Marketability is a necessary criterion to determine excisability of goods. If the goods manufactured by the appellant, though superficially finished excisable goods could not satisfy this criterion on marketability, they would have to be considered to be waste. The kind of situation that the Additional Collector has in mind may be different – in a case where, after the finished excisable product comes into existence it becomes unuseable for some reason. There is however no contention that in the course of manufacture, the product that emerge was fit for marketing. Therefore what was sought to be manufactured was finished excisable product which in the course of such manufacture became unfit for use and thus waste. Credit could not be denied.
6. Advocate for the appellant agrees that goods involving credit of Rs. 14,262.41 which was sent out without requesting credit on duty taken on inputs under Sub-rule 57F(2) could not be accounted and does not challenge the demand for duty. This portion of the Additional Collector’s order is correct.
7. There is however no clear basis in the Additional Collector’s order for imposition of penalty. There is no allegation of any mala fides or any deliberate intention to contravene procedures or evade duty. In these circumstances we set aside the penalty.
8. Appeal thus partially allowed. Consequential relief.