Customs, Excise and Gold Tribunal - Bangalore
M/S. Amco Batteries Ltd. vs Commissioner Of Cce, Bangalore on 23 February, 2001
Equivalent citations: 2001(129)ELT534(TRI-BANG)
ORDER
Shri G.A. Brahma Deva
1. This appeal arises out of and is directed against the impugned order dated 14.12.94 passed by the collector Bangalore.
2. The appellants are engaged in the manufacture of lead acid storage batteries and parts thereof. They are classifiable under heading 85.07 of the Central Excise Tariff Act.
3. Arguing for the appellants shri Sasidharan Submitted that various inputs like synthetic rubber, natural rubber, reclaimed rubber, carbon black, sulphur etc were mixed in a rubber mixing mill and what is taken out of from there is a mixed rubber in a rough sheet form which is not volcanised. He submitted that the mixed rubber in rough sheet form is not a standard specification and as such is not marketable. He contended that the specific pleas has been taken by the party before the adjudicating authority on the issue of marketability, but the same has been brushed aside on the ground that since this being an intermediate product it is capable of marketing. He contended that no evidence has been brought on record to substantiate that item in question is capable of marketing. He submitted that it is settled position now that the burden of proving the marketability is on the revenue and the same has not been discharged.
4. Assuming that revenue is correct in holding that the compounded rubber is marketable, the same is exempt in terms of notification No 71/68 dated 1.4.68. In terms of the notification the credit of duty paid on inputs used in the manufacture of compounded rubber should not be availed under rule 56-A or 57-A. The appellants have reversed the modvat credit on the inputs used in the manufacture of containers/covers which are further used in the manufacture of exempted variety of batteries. Accordingly, they are eligible for the benefit in terms of notification No 71 of 68. The issue has already been settled by the Apex Court in the case of Chandrapur Magnet wires(P) Ltd Vs CCE Nagpur reported in 1996 (81) ELT 3 (Supreme Court). This decision has been consistently followed by the Tribunal in the following cases.
(a) 1996(ELT) 308
(b)1997(91)ELT 172
(c) 1999(35)RLT 325
(d) Final Order No. E/1047-1048/97-B Dt 9.5.97
5. Arguing for the revenue Smt Radha Arun Submitted that the very item is capable of being marketed but fairly conceded that no evidence was brought on record to show that the item as such is capable of being marketed. She has no objection to remand the matter on this limited issue. with reference to the exemption in terms of notification No 71/68, she has nothing to argue in view of the decision of the supreme court in the case of Chandrapur magnet wires (pvt) Ltd. We have carefully considered the submissions made by both sides. Without going into the merits and demerits on the issue of marketability, we find that there is some force in the arguments advanced on behalf of the assessee with reference to the notification No 71/68. The issue with reference to exemption in terms of notification No 71/68 has already been considered by the Apex Court in the cases referred to above. Following the same, we accept the contention of the appellants. We also take note of the fact that subsequently the assessee got benefit on the ver(SIC) from the orders passed by the collector. In the facts and circumstances, the appeal is allowed on this issue. Thus the appeal is allowed in the above terms with consequent relief.