Union Of India And Others vs Bata India Ltd. And Others on 14 September, 1993
The ld. JDR relied on the ruling in the case of Union of India v. Bata India Ltd. by Hon'ble Calcutta High Court. This ruling is clearly distinguishable for the reason that in the first instance this ruling has not taken into consideration the various judgments delivered by the Hon'ble Supreme Court as noted herein and furthermore that even on facts, the item was being utilised by the assessee themselves and therefore, in that context, the Hon'ble High Court had held that the plea that the item does not have market, is not acceptable. This view is also confirmed by the Supreme Court in the case of A.P. State Electricity Board, wherein the Supreme Court found that the marketability does not depend upon the number of purchasers nor is the market confined to territorial limits of India. This is not a situation in the present case. The appellants have stated that their product is not casein as classifiable under Heading 35.01 and it does not have a shelf life as it is not marketable. Therefore, the burden was on the revenue to show that the product is casein and it is known in the market and that it has got shelf life. This initial burden has not been discharged by the revenue. In case if the revenue had placed some material then the burden shifts on the assessee and that the argument of the JDR will have force. As the Revenue has not placed any evidence, therefore, it can be said that the initial burden has not been discharged by the department. The department has also issued Trade Notice as pointed out by the ld. Advocate that this type of product is not considered as 'goods'. Therefore, we have to take note of this tariff notice as well.