ORDER
S. Kalyanam, Member
E/SB/Stay/1571/89/MAS:
1. Since we propose to dispose of the appeal itself today on a short question of law, we grant waiver of pre-deposit pending disposal of the appeal today.
A. No. E/SB/2318/89/MAS.
2. The appeal is directed against the order of the Additional Collector of Central Excise, Madurai, dated 3.2.1989 levying a duty of Rs. 46,409.82 and a penalty of Rs. 3,000 on the appellant.
3. Duty has been levied on Aluminium Paint manufactured by the appellant by mixing Turpentine with Aluminium Paste and used for painting drums and grills in the Appellant’s factory. The short question that arises for our consideration in the present appeal is whether the product popularly called Aluminium Paint is an excisable commodity within the meaning of Central Excises & Salt Act, 1944 or not.
4 Shri Devanthan, the learned Counsel for the appellant, submitted that Aluminium Paste is diluted with varnish or turpentine and used to coat drums and this Aluminium Paste is not manufactured or marketed anywhere in India in this form and this mixture also will have to be used within 24 hours and does not have any shelf-life. The learned Counsel submitted that marketability of the product is one of the essential criteria to adjudge the question as to whether it is excisable or not under the provisions of the Act and this issue has been dealt with by the Supreme Court in the case of Bhor Industries Ltd. v. Collector of Central Excise wherein the question before the Supreme Court was whether the PVC sheets which emerged as an intermediate product were marketable or not in order to render it exigible under the Act. The Supreme Court found that the goods were not marketable and held therefore, that the goods were not exigible to excise duty. The learned Counsel also placed reliance on yet another ruling of the Supreme Court in the case of Collector of Central Excise v. Ambalal Sarabhai Enterprises where the earlier ruling of the Supreme Court has been adverted to and followed.
5. Shri Bhatia, the learned Senior D.R., submitted that in view of the fact that a specific plea in regard to non-marketability of the goods in question has been taken by the appellant even at the earliest stage and since the same has not been adverted to much less considered in the impugned order, the matter may be remitted for reconsideration in the light of the authorities of the Supreme Court.
6. We have carefully considered the submissions made before us. As rightly contended by the learned Counsel for the appellant and as fairly concerded by the learned Senior D.R., the question relating to marketability of the item is quite relevant to adjudge the question with reference to its exigibility to excise duty. In this context we would like to advert to the ruling of the Supreme Court in the Bhor Industries case where the Supreme Court found that crude PVC films as produced by the appellant in that case were not known in the market and could not be sold in the market and was not capable of being marketable. The Supreme Court reiterated that it was the duty of the levenue to adduce evidence or proof that the articles in question were goods. The Supreme Court followed the ratio in that ruling in a later ruling in the case of Collector of Central Excise v. Ambalal Sarabhai Enterprises cited supra. Since we find from the records that the appellant has taken a specific plea that the goods in question are not marketable and that since we further find that the same has not been considered in the impugned order we set aside the impugned order appeal against and remit the matter for reconsideration of the issue from the stand point of marketability of the goods in question with particular reference to the ratio of the rulings of the Supreme Court cited supra.