Collector of Central Excise, Baroda Vs.
United Phosphorus Ltd.  INSC 207 (7 April 2000)
R.C. Lahoti, J.
The respondents are engaged in the
manufacture of insecticides, fungicides, weedicides and pesticides falling
under Tariff sub-heading 3808.10 and excisable there under.
During the process of manufacturing Mercuric
Acetate (MA), Para Chloro Phenyl Valeric Acid (PCA), and Chloro Synthemic Acid
Chloride (CSA Chloride) came into existence as intermediate products. The
Collector of Central Excise passed orders of adjudication holding the abovesaid
three intermediate products liable to payment of excise duty. The respondents
preferred appeals before the Collector (Appeals) who has allowed the appeals
exonerating the said three intermediate products from levy of excise duty. The
appeals preferred by the Revenue against the order of Collector (Appeals) have
been dismissed by a common order by the CEGAT. The aggrieved Revenue has come
up by filing these appeals to this Court.
It is well settled by a series of
pronouncements of Delhi Cloth and General Mills Co.Ltd. 1997 (92) ELT 315 SC
that excise is a duty on goods as specified in the Schedule. The taxable event
in the case of excise duty is the manufacture of goods. In order to be excisable
goods (i) there must be goods (ii) having come into existence as a result of
manufacture, and (iii) to be goods, the article must be known to the market as
such and as would ordinarily come to the market for being bought and sold.
Actual sale of the article is not required but it must be capabale of being
bought and sold. Intermediate products even if captively consumed may be liable
to levy of excise duty if they satisfy the test of being goods on the
touchstone of Mills Co. Ltd. 1997 (92) ELT 315 (SC) the following Collector of
Central Excise, Ahmedabad 1995 (76) ELT 241 (SC) has been re- affirmed:- The
duty of excise being on production and manufacture which means bringing out a
new commodity, it is implicit that such goods must be usable, moveable, saleable
and marketable. The duty is on manufacture or production but the production or
manufacture is carried on for taking such goods to the market for sale.
The obvious rationale for levying excise duty
linking it with production or manufacture is that the goods so produced must be
a distinct commodity known as such in common parlance or to the commercial
community for purposes of buying and selling.
(underlining by us) Though the intermediate
goods so coming into existence may be specified in the Schedule as excisable
they would not be subjected to duty unless they satisfy the test of
marketability. In the case of Delhi Cloth and General Mills Co. Ltd.(supra) the
intermediate product was calcium carbide, which initially produced in the form
of cakes, was broken into smaller pieces after the cakes attained room
temperature and the broken pieces were forthwith put into use for the
production of acetylene gas. The Appellate Collector had found that the calcium
carbide which was sold in the market was packed in airtight containers and
conformed to ISI specifications which the intermediate product of DCM did not.
Their Lordships held that as the calcium carbide manufactured by the DCM for
further uitilisation in the production of acetylene gas was not of a purity that
rendered it marketable nor was it packed in such a way as to make it
marketable, that is to say, in airtight containers it was not excisable on the
ratio of Moti Enterprise 1989 (43) ELT 214 (SC) onus to establish that an
article is goods and marketable, is on the department.
In the case at hand the Collector (Appeals)
has found that the above said three intermediate products came into existence
at a certain stage of a multiple stage integrated chemical process leading to
the final products and therefore they could not be held to be goods as
understood in commercial parlance because they were not marketable. The
department had failed in showing if any facility existed for separation of the
said three products and whether in the form in which the said three products
came into existence in the reaction process were capable of being marketed. The
finding of fact so arrived at has not been challenged much less dislodged
before the Tribunal. The only argument advanced before the Tribunal was that
the three items were mentioned as goods in the dictionary and in the excise
tariff and Mercuric Acetate (MA) was also mentioned as one of the items
entitled to drawback in Duty Drawback Rules.
The Tribunal has observed that these facts
and mere mentioning of an item in Drawback Rules with reference to a different
context was not enough to satisfy the test of marketability unless it was shown
that the intermediate products were capable of being taken to market and bought
and sold. No fault can be found with the view taken by the Tribunal. The
appeals are devoid of any merit and hence are dismissed though without any
order as to the costs.